^, 


^ 

^  ^o. 


Av^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


1.0 


I.I 


|^|Z8 

■  50     •^" 

S!  114 
1^   US, 


2.5 

1.8 


1.25   1  1.4       1.6 

« 6"    

>■ 

^ 


71 


^^? 
> 


7. 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)872-4503 


^>' 


,v 


% 

5 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiquas 


Tachnical  and  Bibliographic  Notas/Notas  tachniquas  at  bibliographiquas 


The  Instituta  has  attamptad  to  obtain  tha  bast 
original  copy  available  for  Nlming.  Faaturaa  of  this 
copy  which  may  ba  bibliographically  unique, 
which  may  altar  any  of  tha  images  in  tha 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


0    Coloured  covers/ 
Couverture  de  coulaur 


I      I    Covers  damaged/ 


D 
D 


D 


n 


D 


Couverture  endommagie 


Covers  restored  and/or  laminated/ 
Couverture  restaur^  et/ou  pelliculAe 


Cover  title  missing/ 

Le  titre  de  couverture  manque 


r~1    Coloured  maps/ 


Cartes  giographiques  an  coulaur 


Coloured  ink  (i.e.  other  than  blue  or  black!/ 
Encra  da  coulaur  (i.e.  autre  que  bleue  ou  noire) 


I      I    Coloured  plates  and/or  illustrations/ 


D 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Reli*  avac  d'autres  documents 

Tight  binding  may  causa  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serrie  peut  causer  de  i'ombre  ou  de  la 
distorsion  la  long  da  la  marge  intAriaure 

Blank  leaves  added  during  restoration  may 
appear  within  tha  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certainaa  pages  blanches  ajouties 
lors  d'une  restauration  apparaissant  dans  la  texte, 
mais.  lorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  AtA  filmtes. 

Additional  comments:/ 
Commentairas  supplAmentaires; 


L'Institut  a  microfilm*  le  meilleur  exampiaire 
qu'il  lui  a  iti  possible  de  se  procurer.  Las  details 
de  cet  exampiaire  qui  sont  peut-itre  uniques  du 
point  da  vua  bibliographiqua,  qui  pauvent  modifier 
una  image  reproduite,  ou  qui  peuvent  exigar  una 
modification  dans  la  m^thoda  normal'!  de  filmaga 
sont  indiqute  ci-dassous. 


I — I    Coloured  pages/ 


D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagies 

Pages  restored  and/oi 

Pages  restaurias  et/ou  pelliculies 

Pages  discoloured,  stained  or  foxed/ 
Pages  dicolories,  tachaties  ou  piquies 

Pages  detached/ 
Pages  ditachias 

Showthrough/ 
Transparence 

Quality  of  prir 

Qualit^  inigale  de  {'impression 

Includes  supplementary  matarii 
Comprend  du  material  suppl^mantaire 

Only  edition  available/ 
Seule  Mition  disponible 


r~~|    Pages  damaged/ 

r~n    Pages  restored  and/or  laminated/ 


rn  Pages  detached/ 

r~n  Showthrough/ 

|~n  Quality  of  print  varies/ 

r~~l  Includes  supplementary  material/ 

r~~1  Only  edition  available/ 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Lea  pages  totalement  ou  partieilement 
obscurcies  par  un  feuillet  d'arrata,  une  pelure. 
etc.,  cnt  iti  fiimies  i  nouveau  de  facon  d 
obtenir  la  meilleure  image  possible. 


t 

si 

01 

ffii 

si 

01 


Tl 

St 

Tl 
w 

IVI 
dii 
en 
ba 

rli 

re( 
mi 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  reduction  indiqui  ci-dessous. 

18X  22X 


10X 


14X 


26X 


30X 


J 

12X 


16X 


20X 


a4x 


28X 


32X 


I 

tails 
I  du 
odifier 
une 
mage 


Th«  copy  film«d  h«r«  has  lM«n  r«produc«d  thanks 
to  the  gonorosity  of: 

Douglas  Library 
Qussn's  Univsrsity 

Tha  imagas  appaaring  hara  ara  tha  bast  quality 
possibia  considaring  tha  condition  and  lagibility 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  spacifications. 


L'axamplaira  flimA  fut  raprodu^t  grica  A  la 
gAniroait*  da: 

Douglas  Library 
Quaan's  Univarsity 

Las  imagas  suivantar«  ont  At*  raproduitas  avac  la 
plus  grand  soin,  compta  tanu  da  la  condition  at 
da  la  nattat*  da  l'axamplaira  film*,  at  an 
conformity  avac  las  conditions  du  contrat  da 
filmaga. 


Original  copias  in  printad  papar  covars  ara  filmad 
baginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  illuatratad  impras- 
sion,  or  tha  back  covar  whan  appropriata.  All 
othar  original  copias  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illuatratad  impraa- 
sion,  and  anding  on  tha  laat  paga  with  a  printad 
or  illuatratad  imprassion. 


Las  axamplairaa  originaux  dont  la  couvartura  an 
papiar  aat  ImprimAa  sont  filmAs  an  commandant 
par  la  pramiar  plat  at  an  tarminant  aoit  par  la 
darnlAra  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  d'illuatration,  soit  par  la  sacond 
plat,  aalon  la  caa.  Toua  laa  autraa  axamplairaa 
originaux  aont  filmAa  an  commanpant  par  la 
pramlAra  paga  qui  comporta  una  amprainta 
d'impraaaion  ou  d'illuatration  at  an  tarminant  par 
la  darnlAra  paga  qui  comporta  una  talla 
amprainta. 


Tha  last  racordad  frama  on  aach  microfiche 
shall  contain  tha  symbol  ^^^  (moaning  "CON- 
TINUED"), or  tha  symbol  V  (moaning  "END"), 
whichavar  applias. 


Un  daa  aymbolas  suivanta  apparattra  sur  la 
darniAra  imaga  da  chaqua  microficha,  salon  la 
cas:  la  aymbola  — ►  signifia  "A  SUIVRE".  la 
symbols  ▼  signifia  "FIN". 


IVIaps,  platas,  charts,  ate,  may  ba  filmad  at 
diffarant  raduction  raiiioa.  Thosa  too  larga  to  ba 
antiraly  includad  in  ona  axpoaura  ara  filmad 
baginning  in  tha  uppar  laft  hand  cornar^  laft  to 
right  and  top  to  bottom,  as  many  framas  att 
raquirad.  Tha  following  diagrams  illustrata  tha 
method: 


Laa  cartaa,  pianchaa,  tableaux,  etc.,  peuvent  Atre 
filmte  A  das  taux  da  reduction  diff Arents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  aaul  clichA,  il  eat  film*  k  partir 
da  Tangle  supArieur  gauche,  de  gauche  k  droite, 
et  de  haut  en  baa,  en  prenant  la  nombre 
d'imagea  nAcessaire.  Lea  diagrammas  suivanta 
illustrent  la  mAthode. 


rata 


lelure. 


1 


2X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

it    I 


( 


'^:ujWhi- 


ii:riri 


UK', 


Neutral  Relations 


AND  THK 


TREATY    OF  WASHINGTON 


FROM  "THE  CAPITAL,"  WASHINGTON  CITY, 


WASHINGTON,  D.C.: 

H'OILL  i.  WITHEBOW,  PRINTERS  AND  8TEBE0T7PEB8 
1872. 


\r  \o  7^% 


s^^  c 


^\ 


QUEEN'S  UNIVERSITY  LIBRAW 


NEUTRAL  RELATIONS  AND  THE  TREATY  OF  WASH- 
INGTON. 


THE  UNITED  STATES,  PRIOR  TO  THE  REBELLION,  THE  CHAMPION 
OF  THE  RIGHTS  OF  NEUTRALS. 

Up  to  the  time  of  the  southern  rebellion  we  had  always 
championed  the  rights  of  neutrals,  maintaining  that  neu- 
tral nations  had  a  perfect  right  to  trade  with  either  of  the 
belligerents,  aiid  to  supply  them  with  munitions  of  war,  or 
anything  else;  and  that  our  Government  was  not  liable  for 
the  unauthorized  acts  of  our  citizens  acting  as  filibusters, 
privateers,  or  sympathizers. 

THE  WAR  OVER,  OUR  RETURN   TO   OUR  EARLY   LOVE,  SHOWN   BY 
BANKS'S  BILL  ON  NEUTRAL  RELATIONS. 

Very  soon  after  we  ceased  to  be  a  belligerent,  we  began 
to  show  unmistakable  signs  of  a  desire  to  return  to  our 
early  love.  This  is  shown  by  the  unanimous  vote  of  the 
House  of  Representatives  in  favor  of  Mr.  Banks's  bill  to 
remodel  the  neutrality  laws.  Section  10  of  that  bill  enacts, 
that  although  our  citizens  shall  not  "knowingly  be  con- 
cerned in  the  furnishing,  fitting  out,  and  arming  of  any  ship 
or  vessel,  with  intent"  that  it  shall  be  employed  to  cruise 
against  a  country  at  peace  with  us,  yet,  "that  nothing  in 
this  act,  or  any  existing  law,  shall  be  so  construed  as  to 
prohibit  citizens  of  the  United  States  from  selling  vessels, 
ships,  or  steamers,  built  within  the  limits  thereof,  or  ma- 
terials or  munitions  of  war,  the  growth  or  product  of  the 
same,  to  inhabitants  of  other  countries,  or  to  governments 
not  at  war  with  the  United  States."  {d9th  Congress,  1st  ses- 
sion, H.  B.  Bill  806.)  This  bill  was  reported  by  the  Com- 
mittee on  Foreign  Afiairs,  "  to  which  was  referred  for  con- 
sideration resolutions  concerning  the  struggle  of  Ireland 


231561 


for  independence."  The  vote  on  the  bill  was  taken  by  yens 
and  nays.     Nai/s,  none. 

Under  this  law  any  number  of  Alabamas  might  be  built 
and  sold  in  the  United  States  to  belligerents,  with  full 
knowledge  of  the  inteniion  to  use  them  as  ships  of  war 
against  a  country  at  pence  with  us. 

Whilst  we  were  nt  war  with  the  Confederate  States  we 
became  violent  opponents  of  the  rights  of  neutrals.  Accord- 
ingly we  got  up,  amongst  other  complaints  against  England, 
the  charge  that  she  was  not  sufficiently  vigilant  in  watching 
a  ship  (the  Alabama)  that  was  being  built  in  an  English  port, 
and  which  ship  was  capable  of  being  used  as  a  ship  of  war; 
that  consequently  she  got  out  of  port  upon  the  false  pre- 
text that  she  was  going  on  a  trial  trip,  and  then,  when  be- 
yond English  jurisdiction,  she  got  a  fitting  out  and  arma- 
ment, and  proceeded  to  capture  many  of  our  vessels.  Now, 
with  the  most  marvellous  inconsistency,  we  persist  in  con- 
tinuing to  claim  damages  for  this  alleged  negligence,  whilst 
we  are  at  the  same  time  proclaiming  to  the  world  that  our 
citizens  ought  not  to  be  prohibited  f^-om  makiny  and  selling 
ships  to  belligerents  to  be  used  as  ships  of  war ^  provided  only 
that  the  purchaser  is  not  at  war  with  us.  That  is  to  say, 
we  maintain  that  if  any  body  in  England  sold  a  ship  to  the 
Confederates,  that  might  be  fitted  out  and  used  as  a  ship  of 
war,  after  furtively  getting  out  of  an  English  port,  the  Eng- 
lish government  must  make  full  compensation  for  the  cap- 
tures made  by  such  vessel,  if  its  escape  could  have  been 
prevented  by  vii>  ilant  detectives  and  officers.  But  that,  on 
the  other  hand,  we  may,  under  the  like  circumstances, 
make  and  openly  sell  such  .mips  to  countries  at  war  with 
England,  although  the  sellers  are  well  aware  that  the  ships 
are  to  be  used  as  war  vessels  against  England! 


ELOQUENT  REPORT  OF  THE  HOUSE  COMMITTEE  ON  FOREIGN 
RELATIONS  DENOUNCING  THE  LAW  WHICH  INTERFERES  WITH 
THE  SALE  OF  SHIPS  TO  BELLIGERENTS. 

The  committee  which  reported  the  above-mentioned  bill 
presented  a  report,  containing  a  lengthy  review  of  the  his- 


been 
hat,  on 
tances, 

witli 
e  ships 


tory  of  01  r  neutrality  laws.  In  that  report,  the  rija;ht  of 
our  citizens  to  build. and  sell  ships-of-war  to  foreigners  is 
very  ably  maintained.     The  committee  say: 

•"  The  recent  improvements  in  naval  architecture  are  such 
as  to  diminish  the  distinctions  between  merchant  vessels  and 
ships-of-war,  and  to  facihtate  the  adaptation  of  one  to  the 
purposes  of  the  other.  A  strong-built,  switt-sailing  mer- 
chant vessel  or  steamer  could  be  made  with  a  single  gun  an 
etfective  war  vessel.  To  prohibit  our  citizens  from  build- 
ing such  vessels  or  selling  materials  for  their  construction 
at  a  time  when  all  nations  except  our  own  are  at  war,  be- 
cause they  may  be  employed  for  lutstile  purposes  by  foreign 
subjects,  or  to  demand  bonds  in  double  the  amount  of  ves- 
sel, cargo,  and  armament,  and  to  require  officers  of  the 
customs  to  seize  and  detain  them  whenever  cargo,  crew, 
or  '  other  circumstances'  shall  render  probable  a  suspicion 
that  they  are  to  be  so  used,  and  where  American  citizens 
are  part  owners  only,  is  substantially  to  deprive  them  of 
their  rights  to  engage  in  ti.e  construction  of  vessels,  or  to 
furnish  materials  therefor." 

INCONSISTKNCY    OF    THE    COMMITTEE'S    ARGUMENT   WITH   THE 

ALABAMA   CLAIMS. 

It  seems  to  have  occurred  to  the  committee  that  the 
doctrine  contended  for  by  them  might  be  deemed  incon- 
sistent with  the  Alabama  claims.  They  undertake  to  refute 
that  idea,  and  contend  that  England  is  liable,  because 
the  vessels  built  in  England,  which  became  confederate 
ships-of-war  and  captured  our  vessels,  were  built  in  viola- 
tion of  the  English  act  of  Parliament.  According  to  the 
committee,  the  English  builders  committed  no  act  wrong- 
ful in  itself,  did  not  violate  any  rule  of  international  law; 
but  only  exercised  what  would  have  been  their  right,  "  to 
engage  in  the  construction  of  vessels,"  but  for  the  provis- 
ions of  the  English  neutrality  act.  It  may  be  doubted, 
however,  whether  they  did  violate  the  English  law  at  all; 
but  if  they  did,  that  is  a  matter  which  we  have  nothing  to 
do  with.  The  enforcement  of  that  law  concerns  England 
alone,  where  no  violation  of  international  law  is  concerned. 

The  committee,  by  way  of  additional  argument,  say: 


•' 0«r  complaint  is  biised  upon"  i\\Q  premature  roco^iiition 
of  the  rebels ji^  belligerents;  and  the  committee  call  them 
pirates. 

That  basis  is  a  very  poor  one.  It  would  have  been  ab- 
surd and  mouHtrous  to  treat  the  Southern  States — each  of 
which  had  a  complete  system  of  government — as  piratical. 

The  confederate  government  held  complete  sway  over  the 
seceded  States.  We  are  the  last  people  on  the  face  of  the 
earth  to  complain  of  promptitude  in  the  recognition  of  bel- 
ligerency, seeing  that  we  have  always  been  prompt  in  that 
respect,  and  doubtless  always  will  be  so,  especially  when 
people  rise  to  throw  oft'  a  government  which  we  deem 
tyrannical.  Besides,  we  declared  a  blockade  of  the  south- 
ern ports,  not  an  embargo,  and  thus  we  ourselves  gave  the 
confederates  the  character  of  belligerents. 

The  committee  say : 

♦'The  highest  interests  of  civilization  demand  that  the 
liberties  and  rights  of  neutrals  should  be  extended,  and  the 
privileges  and  powers  of  States  at  war  diminished.  Upon 
the  recognition  of  this  principle  depends  the  progress  of 
nations,  the  independence  of  States,  the  liberties  of  the 
people.  To  restrict  the  rights  of  neutrult*,  and  enlarge  the 
power  of  belligerents,  is  to  reject  the  teachings  of  Chris- 
tianity and  the  improvements  of  civilization,  npd  to  return 
to  the  doctrines  of  uncivilized  nations  and  the  practices  of 
barbaric  peoples. 

"In  reviewing  the  statute  of  1818,  we  cannot  escape  the 
conclusion,  that  it  is  founded  upon  an  opposite  and  unsound 
philosophy;  that  it  disregards  the  inalienable  rights  of  the 
people  of  all  nations;  that  it  was  imposed  upon  the  coun- 
try by  considerations  aft'ecting  exdusively  the  political 
interests  of  other  nations;  that  it  criminally  restrains  the 
rights  of  nations  at  peace  for  the  benefit  of  those  at  war; 
that  it  was  intended  to  pernetuate  the  supremacy  of  favored 
nations  on  the  sea.  It  properly  belongs  to  another  age, 
and  is  not  of  us  nor  for  us." 


RianT  OP  OUR  CITIZENS  TO  SELL  ARMS  TO  BELLIGERENTS — RE- 
VERSAL OF  GENERAL  M'dOWELL'S  ORDER  PROIIIDITING  EX- 
PORTATION OF  ARMS  TO  MEXICO — OPINION  OP  ATTORNEY 
GENERAL  SPEED,  DECEMBER  28,  1865.        ,  , 

We  have  always  insisted  that  our  people  have  good  right 
to  sell  arms  to  belligerents,  subject,  of  course,  to  the  risk 
of  capture  by  the  opposite  party. 

Can  any  good  reason  be  given  why  it  should  be  unlaw- 
ful to  sell  a  ship,  capable  of  being  made  an  effective  war 
vessel,  to  a  belligerent,  and  yet  be  lawful  to  sell  to  that 
belligerent  guns,  rifles,  powder,  and  balls?  We  got  arms 
and  munitions  from  England,  and  so  did  the  confederates; 
and  it  is  doubtful  whether  we  should  have  been  the  gainers 
by  the  exclusion  of  both  parties  from  the  market. 

The  right  of  our  people  to  sell  arms  to  a  belligerent  pur- 
chaser is  well  known  to  lawyers;  but  as  there  seems  to  be 
some  misapprehension  in  the  public  mind  on  the  subject, 
it  may  be  well  to  advert  to  a  very  recent  event,  in  which 
the  right  was  vindicated  by  our  Government. 

,  General  McDowell,  having  prohibited  the  exportation  of 
arms  from  California  to  Mexico,  the  Attorney  General,  Mr. 
Speed,  was  called  upon  for  his  official  opinion  as  to  the 
legality  cf  that  prohibition.  In  his  opinion,  under  date  of 
December  28,  1865,  {Ex.  Doc.  Mexican  Affairs^  vol.  2,  p. 
229,)  which,  it  will  be  observed,  is  after  the  termination  of 
our  war,  he  says : 

"Now,  I  apprehend  it  to  be  well  settled,  that  neutrals 
may  lawfully  sell  at  home  to  a  belligerent  purchaser,  or 
carry  themselves  to  the  belligerent  power,  contraband  ar- 
ticles subject  to  the  right  of  aeizure  in  transitu."  {Kent's 
Comm.,  p.,  142.)  In  the  cpse  of  the  Santissiraa  Trinidad,  Mr. 
Justice  Story,  in  delivering  the  opinion  of  the  court,  said  : 
"There  is  nothing  in  our  laws,  or  in  the  law  of  nations, 
that  prohibits  our  citizens  from  sending  armed  vessels,  as 
well  as  munitions  of  war,  to  foreign  ports  for  sale.  It  is  a 
commercial  adventure,  which  no  nation  is  bound  to  pro- 
hibit, and  which  only  exposes  the  persons  engaged  in  it  to 
the  penalty  of  confiscation.    7  Wneat.f  340." 


8 

Mr.  Seward,  Secretary  of  State,  instructed  General  Mc- 
Dowell to  revoke  his  order. 

General  Grant  had  revoked  it  directly  he  heard  of  it. 

The  committee,  in  the  aforesaid  report  on  neutral  re- 
lations, argued,  and  with  great  truth  and  justice,  that  the 
eit'ect  of  the  restriction,  as  to  ships,  imposed  by  the  exist- 
ing law  of  1818,  "  is  to  per2Jeiiiaie  the  subjugation  of  States 
vnthout  naval  force  to  the  will  of  dominant  maritime  nations." 

Why  should  that  policy  be  continued?  We  allow  our- 
selves to  be  influenced  too  much  by  ancient  practices.  Why 
should  a  nation  without  a  navy,  or  with  only  a  small  navy, 
be  harried  .*\nd  worried  and  oppressed  with  impunity  by  a 
great  naval  power,  when,  having  money  with  which  to 
purchase  ships,  it  could  defend  itself  if  allowed  to  do  so? 

OUR  OLD  ESTABLISHED  DOCTRINE,  AFFIRMING  OUR  NON-LIA- 
BILITY FOR  THE  UNAUTHORIZED  ACTS  OF  FILIBUSTERS,  PRI- 
VATEERS, &C. 

Formerly,  when  we  were  the  champions  of  neutral  rights, 
■we  used  to  lay  down  the  doctrine  broadly,  that  we  were 
not  liable  for  the  unauthorized  acts  of  our  citizens  in  fitting 
out  privateers  to  prey  on  the  commerce  of  belligerents; 
nor  for  any  filibustering  expeditions  to  Texas,  Mexico, 
Cuba,  or  elsewhere,  although  the  money  and  the  men  for 
such  expeditions  were  sometimes  obtained  through  adver- 
tisements, public  meetings,  and  the  most  open  and  noto- 
rious means,  which  could  easily  have  been  suppressed  by 
the  State  and  federal  authorities. 

THE  DESTRUCTION  OF  THE   COMMERCE   OF  PORTUGAL  BY  BALTI- 
MORE CLIPPERS — OUR  REPUDIATION  OF  ALL  LIABILITY. 

At  one  time  the  commerce  of  Portugal  was  destroyed 
by  Baltimore  clippers — privateers — sailing  openly,  without 
the  slightest  attempt  at  concealment,  out  of  the  port  of 
Baltimore,  under  the  flag  of  the  seceding  or  revolting  pro- 
vinces of  Portugal,  and  many  of  the  leading  men  of  Balti- 
more were  interested  in  the  business. 


\ti 


\ 


V, 


9 


The  Portuguese  government  contended  that  our  Gov- 
ernment, or  the  State  authorities,  could  and  ought  to  have 
restrained  these  operations;  and,  having  failed  to  do  so, 
that  our  Government  oug'nt  to  indemnify  the  sufferers. 

How  did  we  treat  tliat  chiim?  Wo  mot  it  with  a  plump 
denial  of  the  obligation  assumed  by  the  claimants,  and 
maintained  that  no  nation  had  ever  admitted  its  responsi- 
bility for  the  unautliorized  acts  of  its  citizens  beyond  its 
jurisdiction.  {Letler  of  J.  Q.  Adams,  See.  of  Slate,  to  the 
Chev.  Correa  de  Serra,  March  14,  1818,  Fx.  Doc.  53,  1st 
Sess.  S2d  Cong.,  p.  166.) 

That  is  the  true  American  doctrine,  which  we  should 
not  have  allowed  ourselves  to  be  inveigled  from  by  anti- 
British  demagogues  and  ambitious  lawyers,  anxious  to  get 
up  a  big  case,  without  any  knowledge  of  or  care  about  the 
ultimate  consequences  and  the  true  policy  c»f  the  country. 

In  our  "case"  we  contend  that  it  is  a  violation  of  inter- 
national law  if  a  government  negligently  fails  to  prevent 
its  citizens  from  sending  out  of  any  of  its  ports  a  vessel, 
loith  intent  or  knoidedge  that  the  same  shall  or  will  be  em- 
ployed in  ihe  naval  service  of  any  foreign  power  then  at 
war. 

In  opposition  to  this  may  bo  presented  the  bill  passed 
unanimously  by  our  Ilouse  of  Representatives,  making  it 
lawful  to  build  and  sell  home-wade  ships,  adapted  for  war 
purposes,  from  which  it  is  evident  that  we  do  not  mean  to 
be  bound  by  that  alleged  ruh  of  international  law,  and  in  fact 
that  ice  deii'j  that  there  is  ani/  such  law.  The  "case"  is  right 
in  affirming  that  restrictions  imposed  by  international  law 
cannot  be  aborogatod  by  municipal  laws.  And  our  Ilouse 
of  Representatives  did  not  pro[)oso  to  abolish  a  rule  of  the 
law  of  nations,  but  did  intend,  fully  and  clearly,  to  put  the 
right  of  building  and  selling  ships  of  war  on  tiie  same  foot- 
ing as  arms  and  ammunition. 

We  have  by  the  treaty  a  new  set  of  rules,  which  we 
agree  to  be  governed  by  in  our  relations  with  Great  Brit- 
ain— not  with  any  other  nation. 

The  treaty  doesnot  declare  these  riiles  to  be. part  of  the 


10 

law'of  nations,  but  both  parties  agree  to  invite  other  mar- 
itime powers  to  accede  to  them. 

Our  commissioners,  in  negotiating  this  treaty,  obtained 
the  adoption  of  these  rules  in  order  to  improve  our  chances 
of  winning  the  case  before  the  arbitrators.  To  secure  that 
comparatively  unimportant  result,  they  agreed  to  bind  us  to 
a  certain  course  of  conduct  in  future.  The  English  thought 
they  got  a  quid  'pro  quo. 

THK  PORTUGUESE  CASE  STATED— THE  STRONGEST  CASE  ON  REC- 
ORD— INTERESTING  COKRESPONDENCE  BETWEEN  THE  TWO 
GOVERNMENTS. 

The  case  of  Portugal  against  the  United  States  was 
much  stronger  than  that  of  the  United  States  against  Eng- 
land, now  pending  before  the  Geneva  tribunal  of  arbitra- 
tors. A  short  summary  of  it  may  be  interesting  and  some- 
what instructive. 

On  December  20,  1816,  the  Chevalier  Joseph  Cornea  de 
Serra,  the  Portuguese  minister  at  Washington,  addressed  a 
note  to  Mr.  Monroe,  Secretary  of  State,  informing  him 
that  certain  privateers  were  being  fitted  out  in  American 
ports  to  capture  Portuguese  ships;  that  the  armaments 
were  carried  on  in  the  port  of  Baltimore  in  a  bare-faced 
way,  and  requests  that  the  citizens  of  the  United  States 
shall  be  prevented  by  the  laws  of  their  country  from  be- 
coming, in  masses,  acting  parties  in  wars  which  are  not 
their  own.  {Ex.  Doc.y  1st  Sess.  S'2d  Cong.,  Doc.  No.  53,  Sd 
series,  No.  1,  p.  161.) 

To  this  Mr.  Monroe  replied,  December  27, 1816,  as  fol- 
lows, {Ex.  Doc,  supra,  p.  163:) 

"  You  are  aware  that  the  vessels  are  equipped  without 
any  authority  from  the  Government,  and  on  pretexts  very 
different  from  those  which  you  assign.  You  are  also 
aware  that  the  existing  laws  do  not  authorize  the  Presi- 
dent to  interfere  in  such  cases." 

He  adds,  that  the  President  will  recommend  the  passage 
of  a  law  to  preserve  neutrality.    (That  law  was  enacted  3d 


w 


11 


March,  1817,  and  that  h-  ivas  amended  by  an  act  passed 
in  1818,  which  is  now  in  force.) 

On  March  8,  1818,  M.  de  Serra  addressed  a  note  to  Mr. 
John  Q.  Adams,  Secretary  of  State,  {Ex.  Doc.  suj^ra,  page 
165,)  referring  to  the  capture  of  three  Portuguese  ships 
by  privateers  fitted  out  in  the  United  States,  manned  by 
American  crews,  and  commanded  by  American  captains, 
and  expresses  a  hope  that  the  Government  of  the  United 
States  will  be  willing  to  give  satisfaction  and  indemnilica- 
tion  for  the  injury  done. 

To  this  Mr.  J.  Q.  Adams  replied,  March  14,  1818,  {Ex. 
Doc.  supra,  page  166  :) 

"Sir:  Your  letter  of  the  8th  instant,  complainin^j  of  the 
capture  of  three  Portuguese  ships  by  privateers,  said  to  be 
fitted  out  in  the  United  States,  manned  by  American 
crews  and  commanded  by  American  captains,  though  un- 
der colors  other  than  those  of  the  United  States,  has  been 
received. 

"The  Government  of  the  United  States,  having  used  all 
the  moans  in  its  power  to  prevent  the  fitting  out  and  arm- 
ing of  vessels  in  their  ports  to  cruise  against  any  nation 
with  whom  they  are  at  peace,  and  having  faithfully  carried 
into  execution  the  laws  enacted  to  preserve  inviolate  the 
neutral  and  pacific  obligations  of  this  Union,  cannot  con- 
sider itself  bound  to  indemnify  individual  foreigners  for 
losses  by  captures,  over  which  the  United  States  have 
neither  control  nor  jurisdiction.  For  such  events  no  na- 
tion can  in  principle,  nor  does  in  practice,  hold  itself  re- 
sponsible. A  decisive  reason  for  this,  if  there  were  no 
other,  is  the  inability  to  provide  a  tribunal  before  which 
the  facts  can  be  proved. 

"  The  documents  to  which  you  refer  must,  of  course,  be 
ex  parte  statements,  which  in  Portugal  or  in  Brazil,  i-'s  well 
as  in  this  country,  could  only  serve  as  a  foundation  for 
actions  in  damages,  or  for  the  prosecution  and  trial  of  the 
persons  supposed  to  have  committed  the  depredations  and 
outrages  alleged  in  them.  Should  the  parties  come  within 
the  jurisdiction  of  the  United  States,  there  are  courts  of 
admiralty  competent  to  ascertain  the  facts  upon  litigation 
between  them,  to  punish  the  outrages  which  may  be  duly 
proved,  and  to  restore  the  property  to  its  rightful  owners, 
should  it  also  be  brought  within  our  jurisdiction,  and  found 


I!    i 


!    I 


1    ! 


(!|:  , 


12 

upon  judicial  inquiry  to  have  been  taken  in  the  manner 
represented  by  your  letter.  By  the  universal  laws  of  na- 
tions the  obligations  of  the  American  Government  extend 
no  further." 

Again,  M.  de  Serra  writes  to  Mr.  Adams  November  23, 
1819,  {Ex  Doc.  supra,  page  174:) 

"During  more  than  two  years  I  have  been  obliged  by 
my  dut}'  to  oppose  the  systematic  and  organized  depreda- 
tions daily  committed  on  the  property  of  Portuguese  sub- 
jects by  people  living  in  the  United  States,  and  with  ships 
fitted  in  ports  of  the  Union,  to  the  ruin  of  the  commerce 
of  Portugal.  I  do  justice  to,  and  am  grateful  for  the  pro- 
ceedings of  the  executive,  in  order  to  put  a  stop  to  these 
depredations,  but  the  evil  is  rather  increasing.  I  can  pre- 
sent to  you,  if  required,  a  list  of  fifty  Portuguese  ships, 
almost  all  richly  laden,  some  of  them  East  Indiamen,  which 
have  been  taken  by  these  people  during  the  period  of  full 
peace.  This  is  not  the  whole  loss  we  have  sustained,  this 
list  comprehending  only  those  captures  of  which  I  have 
received  oflicial  complaints.  The  victims  have  been  many 
more,  besides  violations  of  territory,  by  landing  and  plun- 
dering asliore  with  shocking  circumstances. 

"  One  city  alone  on  this  coast  has  armed  twenty-six  ships 
which  prey  on  our  vitals ;  and  a  week  ago  three  armed 
ships  of  this  nature  were  in  that  port  waiting  for  a  favor- 
able occasion  of  sailing  for  a  cruise.         *         *         * 

"  They  are  more  powerful  than  the  African  infidels,  be- 
cause, the  whole  coast  of  Barbary  does  not  possess  such  a 
strength  of  privateers.        *        *        * 

"  I  shall  not  tire  you  with  the  numerous  instances  of 
these  facts,  but  it  may  be  easily  conceived  how  I  am  heart- 
ily sick  of  receiving  frequent  communications  of  Portu- 
guese property  stolen,  of  delinquents  inconceivably  ac- 
quitted, letters  from  Portuguese  merchants  deeply  injured 
in  their  fortunes,  and  seeing  me  (as* often  as  has  been  the 
case)  oppressed  by  prayers  for  bread  from  Portuguese  sail- 
ors, thrown  penniless  on  the  shores  after  their  ships  had 
been  captured." 

He  adds,  "  I  trust  in  the  wisdom  ar.d  justice  of  this  Gov- 
ernment; he  will  find  the  proper  means  of  putting  an  end 
to  this  monstrous  infidel  conspiracy,  so  heterogeneous  to 
the  very  nature  of  the  United  States." 


liii  I 


I 


u 


IS 


On  May  25, 1850,  the  Portuguese  minister,  the  Chevalier 
de  Figaniere,  addressed  a  note  to  Mr.  Clayton,  the  Secre- 
tary of  State,  {Sx.  Doe.  supra,  page  179,)  referring  to  the 
depredations  above  mentioned,  and  proposing  a  comrais- 
sion  to  examine  into  and  estimate  the  losses  and  damages 
arising  from  these  captures.  He  says  that  negotiations 
have  been  interrupted  in  consequence  of  the  many  political 
vicissitudes  through  which  Portugal  has  unfortunately 
passed  for  many  years. 

T<^  this  Mr.  Clayton  replied.  May  30,  1850,  {Ex.  Doc. 
supro.,  page  180,)  referring  to  Mr.  Adams's  refusal  to  ap- 
point a  joint  commission  to  determine  and  assess  the  dam- 
ages claimed,  anfl  f^^'pres8ing  surprise  at  the  reappearance 
of  these  old  claims. 

To  this  M.  de  Figaniere  replied,  June  6, 1850,  {Ex.  Doc. 
supra,  p.  185,)  that  the  claim-i  were  of  more  recent  date 
than  one  which  had  lately  been  revived  by  the  American 
Government  against  Portugal,  (alluding  to  the  case  of  the 
privateer  Armstrong,  which  had  been  captured  in  1814,  in 
Fayal,  by  tlie  British.  The  American  Government  claimed 
damages  from  the  Portuguese  government,  on  the  ground 
that  the  latter  was  bound  to  protect  the  neutrality  of  its 
port.) 

On  November  7,  1850,  M.  de  Figaniere  returned  again 
to  the  charge,  {Ex.  Doc.  supra,  p.  153,)  and  laid  before  Mr. 
Webster,  Secretary  of  State,  a  statement  in  support  of  the 
claims.  He  says,  "upon  the  renewal  of  the  old  claims  of 
the  United  States  against  Portugal,"  he  desires  to  present 
these  "vastly  more  important  counter-claims."  It  is  wor- 
thy of  remark  here  that  the  President,  in  his  annual  mes- 
sage to  Congress,  December  24,  1849.  referring  to  the  old 
claims  of  the  United  States  against  Portugal,  says,  that 
"the  revolutionary  and  distracted  condition  of  Portugal  in 
past  times  has  been  represented  as  one  of  the  leading 
causes"  of  the  delay  in  the  adjustment  of  them. 

The  letter  of  M.  de  Figaniere  to  Mr.  Webster,  of  No- 
vember 7,  1860,  containing  a  full  and  formal  statement  of 
the  case  against  the  United  States,  with  a  list  of  the  vessels 


Ml 


14 

captured,  is  a  document  of  great  interodt  and  importance, 
as  will  be  seen  from  the  following  extracts: 

"The  undersigned,  of  her  majesty's  counsel  and  minister 
resident  of  Portugal  in  the  United  States  of  America,  has 
been  instructed  by  his  government  to  lay  before  thu  hon- 
orable Daniel  Webster,  Secretary  of  State  of  the  said  United 
States,  the  following  statement  in  support  of  the  claims  of 
Portuguese  subjects  against  the  American  Government, 
arising  from  captures  of  Portuguese  vessels,  with  their 
cargoes,  in  the  years  1816  down  to  so  late  as  1828,  by  priva- 
teers fitted  out  and  equipped  in  ports  of  the  United  States, 
principally  in  that  of  Baltimore,  and  assuming  to  sail  under 
the  flag  of  South  American  insurgent  States,  especially 
that  of  Artigas. 

"  Upwards  of  sixty  Portuguese  vessels,  with  their  cfirgoes, 
were  captured  or  jilundered,  and  such  ships  and  cargoes 
were  appropriated  by  the  captors  to  their  own  use. 

"The  fitting  out  of  these  privateers  at  Baltimore  was  a 
matter  of  public  notoriety,  and  many  of  the  leading  citi- 
zens there,  incluuxUg  the  sheritf  and  postmaster,  were  sum- 
moned before  the  courts  as  owners  or  interested  in  such 
privateers. 

"It  is  well  known  that  the  noted  Banda-oriental  chief 
Artigas  held  no  seaport,  had  no  ships,  no  sailors,  and  the 
privateers  assuming  his  unrecognized  flag  were  mostly 
manned  and  commanded  by  citizens  of  the  United  States, 
and  in  some  instances  the  officers  held  commissions  in  the 
navy  of  the  United  States. 

"The  undersigned  begs  leave  to  say,  and  he  submits, 
that  it  was  the  duty  of  the  United  States  Government  to 
exercise  a  reasonable  degree  of  diligence  to  prevent  these 
proceedings  of  its  citizens,  and  that,  having  failed  to  do  so, 
a  just  claim  exists  on  the  part  of  the  government  of  Portu- 

fal,  in  behalf  of  its  despoiled  sutyects,  against  the  United 
tates,  for  the  amount  of  the  losses  sustained  by  reason 
thereof. 

"Mr.  de  Figaniere  would  here  recall  to  the  honorable 
Mr.  Webster's  attention  the  state  of  the  negotiations  be- 
tween the  two  governments  on  this  subject.  So  early  as 
the  year  1816  the  Chevalier  Correa  da  Serra,  his  most 
faithful  majesty's  plenipotentiary,  apprized  Mr.  James 
Monroe,  the  then  Secretary  of  State,  ot  these  illegal  arma- 
ments in  Baltimore.  In  March,  1818,  that  minister  claimed 
indemnification  by  the  Government  of  the  United  States 


u 


J  importance, 


I  and  minister 
America,  has 
jfore  the  hoii- 
lesaid  United 
the  claims  of 
Government, 
8,  with  tlieir 
828,  by  priva- 
Jnited  States, 
f  to  sail  nnder 
es,  especially 

their  cargoes, 
and  cargoes 

1  use. 

timore  was  a 
leading  citi- 

ir,  were  sum- 

ested  in  such 

riental  chief 
ors,  and  the 
tvere  mostly 
lited  States, 
sions  in  the 

[he  submits, 
eminent  to 
■event  these 

d  to  do  so, 

lit  of  Portu- 

the  United 

by  reason 

honorable 
nations  be- 
50  early  as 
his  most 
Lr.  James 
Jgal  arraa- 
ler  claimed 
Ited  States 


15 

for  the  losses  sustained  by  Portuguese  subjects  from  the 
captures  made  by  the  said  privateers,  to  which  application 
the  Secretary  of  State,  in  a  note  dated  the  14th  of  said 
March,  replied  that,  'The  executive  having  used  all  its 
power  to  prevent  the  arming  of  vessels  in  its  ports  against 
nations  with  whom  it  was  at  peace,  and  having  put  into 
execution  the  acts  of  Congress  for  keeping  neutrality,  it 
could  not  consider  itself  obliged  to  indemnify  foreign  indi- 
viduals for  losses  arising  from  captures  upon  which  the 
United  States  had  neither  command  nor  jurisdiction.' 

"The  undersigned  willingly  admits  that,  if  the  executive 
of  the  United  States  had  used  all  its  poicer  to  prevent  the 
arming  of  vessels  within  its  territory  and  their  sailing  from 
its  ports  against  the  commerce  of  Portugal,  no  claim  could 
have  been  set  up,  by  or  in  behalf  of  Portuguese  subjects, 
against  the  Government  of  the  United  States,  but  that  the 
only  remedy  would  have  been  against  the  wrong-doers  in 
the  courts  of  law  of  the  United  States.  But  in  point  of  fact 
the  fitting  out  of  these  privateers  was  so  notorious  that,  by 
due  diligence  on  the  part  of  the  Government  and  the  offi- 
cers of  the  United  States,  the  evil  might  have  been  pre- 
vented. 

"The  Chevalier  Correa,  in  another  communication  ad- 
dressed to  the  Secretary  of  State,  dated  July  16,  1820,  re- 
newed his  application,  and  proposed  that  the  United  States 
should  appoint  commissioners, '  with  full  powers  to  confer 
and  agree  with  her  majesty's  ministers  in  what  reason  and 
justice  demand.' 

"In  a  further  letter  from  that  minister  to  Mr.  J.  Q. 
Adams,  dated  26th  August  of  the  same  year,  the  names  of 
the  officers  of  the  navy  of  the  United  States  are  given,  who, 
in  October,  1818,  embarked  and  served  on  board  the  armed 
schooner  "General  Artigas."  The  said  schooner  sailed 
under  the  so-called  Artigan  flag,  and  cruised  for  many 
months  on  the  coast  of  Brazil,  capturing  several  Portuguese 
vessels,  among  others  the  Sociedade  Feliz,  which  was 
brought  to  Baltimore. 

"The  names  of  said  officers,  as  given  by  Mr.  Correa, 
were  Lieutenants  Peleg  and  Dunham,  of  Khode  Island, 
and  midshipman  Augustus  Swartout,  of  New  York,  and 
Benjamin  S.  Grimke,  of  South  Carolina. 

"Mr.  Adams,  in  a  letter  addressed  to  the  Portugese 
minister,  dated  the  30th  of  September,  1820,  declines  the 
appointment  of  commissioners  as  proposed,  and  intimates 
that  the  Portuguese  subjects  who  may  have  suffered  wrongs, 


i:i 


1 


16 

have  a  remedy  in  the  courts  of  justice,  but  that  'for  any 
acta  of  the  citizens  of  the  United  States,  vommitlcd  out  of 
their  jurisdldion  and  beyond  their  control^  the  Government  of 
the  United  States  is  not  responsible.'  Mr.  Adams  adds, 
that  in  the  war  in  South  America,  to  which  Portugal  had 
for  several  years  been  a  party,  'the  GoverDraent  of  the 
United  States  had  neither  countenanced  nor  permitted  any 
violation  of  neutrality  by  their  citizens.' 

"The  undersigned,  without  intending  to  impute  crimi- 
nal negligence  to  the  Government  of  the  United  States  in 
this  matter,  may  be  permitted  to  observe,  that  citizens 
of  the  United  States  were  permitted,  whilst  within  their  ju- 
risdiction and  under  the  control  of  the  Government,  to  fit 
out  armed  vessels  to  go  forth  froni  the  ports  of  the  United 
States,  tilled  with  American  citizens,  to  prey  upon  the  com- 
merce of  Portugal. 

"Iler  moat  faithful  majesty's  government  and  the  un- 
dersigned will  readily  admit  that  the  Government  of  the 
United  States  did  not  support  or  countenance  these  pro- 
ceedings, which  were  in  direct  violation  of  the  laws  of 
nature,  of  nations,  and  of  these  United  States ;  but  it  is 
conceived  that  the  American  Government  was,  to  a  certain 
extent,  remiss  in  not  using  more  efforts  in  suppressing 
these  expeditions,  and  that  a  liability  results  from  that  re- 
missness. In  April,  1822,  Mr.  Joze  A.  Grehan,  charg6 
d'affaires  of  Portugal,  in  a  letter  to  the  Secretary  of  State 
of  that  day,  requires  that  commissioners  should  be  '  chosen 
b}'  both  governments,  for  the  purpose  of  arranging  the  in- 
demnities justly  due  to  Portugese  citizens,  for  the  damages 
which  they  have  sustained  by  reason  of  piracies,  supported 
by  the  capital  and  the  means  of  the  United  States.' 

"To  this  application  the  Secretary  of  State  replied,  on 
the  30th  of  April,  1822,  that  he  could  not  accede  to  the 
appointment  of  commissioners  for  the  purpose  stated,  aud 
says:  'It  is  a  principle  well  knoVn,  and  understood,  that 
no  nation  is  responsible  to  another  for  the  acts  of  its  citi- 
zens, committed  without  its  jurisdiction,  and  out  of  the 
reach  of  its  control.' 

"Mr.  Webster  will  not  fail  to  perceive,  that  the  com- 
plaint is  really  grounded  upon  the  acts  of  American  citi- 
zens, committed  within  the  jurisdiction  of  the  United 
States,  and  within  the  reach  of  the  control  of  their  govern- 
ment ;  that  is  to  say,  the  fitting  out  of  armaments  within 
the  ports  of  the  United  States,  to  despoil  Portugese  com- 
merce. 


17 

"This  subject  has,  sinco  the  above  date, been  repeatedly 
renewed  verbally,  if  not  in  the  correspondence  of  Messrs. 
T.  8.  Conrtancio,  J.  Banozo,  I'erura,  and  Torlades  d'Azam- 
buja,  down  to  1835;  and  upon  the  renewal  of  the  old  claims 
of  the  United  States  against  Portugal,  both  the  undersigned 
and  his  government  have  repeatedly  adverted  to  these  long 
standing  and  vastly  more  important  counter  claims." 

In  support  of  his  view  of  the  law  of  nations,  he  quotes 
Vattel  and  other  authorities,  and  adds: 

"It  appears  to  the  undersigned,  that  the  only  qu'^stion 
to  be  examined  is,  whether  the  Government  of  the  Ui.ited 
States  could,  by  the  exorcise  of  a  rousonable  degree  of  dili- 
gence, hiive  prevented  its  citizens  from  going  out  of  its 
ports  in  armed  vessels  to  cruise  against  the  commerce  of 
Portugal,  a  friendly  nation,  with  which  the  United  States 
had  ever  been  at  peace,  and  had  uninterrupted  commercial 
relations."         *         *         * 

"  The  public  notoriety  of  these  expeditions  is  easily 
shown.  A  reference  to  '  Niles'  Register,'  and  other  organs 
of  public  information  published  in  those  times,  will  suffice 
for  this  purpose  r  and  nothing  was  more  generally  known 
at  Baltimore,  than  that  these  expeditions  were  commonly 
fitted  out  at  that  port.  Indeed,  privateers  were  not  only 
equipped  in  Baltimore,  but  they  were  accustomed  to 
bring  their  captures  there  for  sale.  The  Government  of 
the  United  States  might,  by  the  exercise  of  due  diligence, 
have  become  acquainted  with  the  facts,  and  prevented  the 
privateers  from  sallying  forth. 

"  The  (ihief  Artigas  did  not  possess  a  single  seaport,  as 
has  been  stated,  and  the  so-called  privateers  gave  no  secu- 
rity tliat  they  would  conduct  their  cruises  according  to  the 
laws  and  usages  of  war,  and  bring  in  their  prizes  for  adju- 
dication. They  were  rather  pirates  than  privateers,  and 
it  is  respectfully  submitted,  the  Government  of  the  United 
Stattis  should  have  exerted  itself  so  as  efficiently  to  prevent 
their  repeated  and  long-continued  depredations.  There  were 
a  large  number  of  these  so-called  privateers,  at  least  twenty- 
eight  or  thirty,  preying  upon  the  commerce  of  Portugal. 

*'Tho  authorities  of  the  State  of  Maryland  were  evi- 
dently negligent  in  permitting  these  warlike  preparations 
in  the  port  of  Baltimore,  and  as  no  claim  can  be  made  by 
Portugal  against  that  State,  all  complaints  founded  upon 
the  negligence  of  the  State  authorities  must,  of  course,  be 
made  against  the  Government  of  the  United  States,  and 
2 


I  i 


18 

this  govornmont  is  therefore,  as  the  undoraigncd  conceives, 
liable  fur  that  neglect. 

"As  already  stated,  in  some  instances  the  privateers 
brought  their  prizes  into  the  ports  of  the  United  States, 
and  the  cargoes  were  sold,  and  upon  such  cargoes  duties 
wore  levied  and  paid  as  upon  a  regular  importation.  The 
undersigned  conceives  that  justice  demands  these  du- 
ties, with  interest,  should  be  returned  to  her  majesty's 
government  for  the  use  of  the  parties  interested  in  such 
cargoes." 

A  list  of  the  vessels  is  given,  and  the  loss  is  estimated  to 
exceed  ^1,500,000  p^nncipal.  Of  course  damages  wore  not 
claimed  for  the  prolongation  of  the  war,  the  loss  of  the 
Colonies,  &c. 

WE  REFUSE  TO  SUBMIT  THE  CLAIMS  AGAINST  US  TO  ARBiTRA- 
TION,  BUT  PERSIST  IN  TRESSINQ  OUR  OLD  CLAIM  AGAINST 
PORTUGAL  IN  THE  PRIVATEER  ARMSTRONG  CASE — THE 
EMPEROR  OF  FRANCE  THE  ARBITRATOR — THE  DECISION 
AGAINST  US. 

M.  de  Figaniere,  in  his  letter  of  June  6,  1850,  offered, 
on  behalf  of  his  government,  to  leave  to  the  arbitration  of 
a  third  friendly  and  independent  power  all  the  claims  on 
both  sides.  The  offer  of  arbitration  was  accepted  as  to 
the  claims  of  the  United  States  against  Portugal,  but  de- 
clined as  to  the  claims  of  Portugal  against  the  United 
States.  Louis  Napoleon,  the  president  of  Franco,  was 
selected  as  the  arbitrator,  and  ho  decided  against  the  United 
States.  An  enormous  amount  of  law  learning  was  thrown 
away  upon  the  emperor,  who,  finding  that  the  captain  of 
the  privateer  had  been  the  aggressor  by  firing  into  the 
boats  of  a  British  man-of-war  in  the  harbor,  and  then 
had  gone  ashore  with  his  crew  and  demanded  protection, 
considered  that  the  United  States  had  no  case.*     The  an- 

*  When  we  are  at  poaco,  we  hold  lax  doctrines  as  to  the  duties  and  obliga- 
tions of  neutrals;  but  when  we  are  at  war  we  find  that  neutrals  have  very 
limited  rights,  but  almost  unlimited  obligations.  This  Armstrong  case  is  an 
illustration  of  the  elasticity  of  our  principles.  According  to  our  doctrine  in 
that  case,  a  neutral  is  not  merely  bound  to  use  "due  diligence"  to  preserve 
its  ueutrality,  it  is  liable  if  its  neutrality  should  be  superseded  by  superior 


I 


19 

tiquity  of  this  case  was  not  coneidorod  by  the  State  Dopart- 
raont  at  Washington  to  be  any  barrier  to  the  claim;  but 
the  moie  recent  cases,  which  the  Portuguese  government 
desired  to  have  examined,  were  treated  as  too  old  and  fishy. 

CURIOUS    DOCTRINE     PROPOUNDED     BY    MR.    WEI^STER    AS    TO 
NON-LIADILITY,  FOR  MALFEASANCE,  OF  A  STATE. 

Mr.  Webster  gave  no  written  reply  to  M.  do  Figaniere, 
but  communicated  orally  to  him  that  he  repudiated  the 
idea  that  the  United  States  Government  was  liable  for  the 
conduct  of  the  authorities  of  the  State  of  Maryland. 

(It  will  bo  recollected  that  the  imprisonment  of  British 
colored  seamen  at  Charleston,  under  the  State  laws  of 
South  Carolina,  involved  the  same  question.) 

Mr.  Webster  further  intimated  that  the  American  Gov- 
ernment would  not  tolerate  the  further  discussion  of  the 
claims  in  question;  and,  consequently,  Portugal,  with  the 


force  of  one  of  the  bollignrontH.  It  is  curious  to  obaervo  how  wo  shift  our 
cround.  Tiioro  is  no  obligation  on  our  part  to  prevent  a  raid  on  Canada, 
but  poor  little  Portugal  was  under  an  absolute  obligation  to  drive  the  British 
Hoot  out  of  tlio  liarbor  of  Fayal,  or  pay  us  fur  the  damage  iniiicted  Ijy  that 
fleet.  Tiiat  out  Herod's  llerod,  and  is  only  paralleled  by  the  Alabama 
claims,  to  which  it  boars  a  retnarkablo  family  likeness. 

IIow  such  a  monstrous  doctrine  came  to  be  propounded  is  a  puzzle  to  those 
who  do  not  know  iiow  astute  litigious  people  are  at  making  "points."  There 
is,  moreover,  another  explanation  of  the  mystery.  Tlio  commander  of  the 
British  naval  force  in  tne  port  of  Fayal,  after  the  privateer  had,  without 
any  just  reasi  a  or  provocation,  fired  upon  and  killed  some  men  in  one  of  his 
boats,  was  foolish  enough  at  iirst  to  try  to  board  the  nrivateer,  instead  of 
laying  a  ship  alongside  of  hor,  (he  fearing  the  shots  would  injure  the  town.) 
Of  course  the  boats  were  easily  beaten  otf  with  great  slaughter.  Our  people 
treated  it  as  a  i)altlo  between  the  privateer  and  the  whole  British  squadron, 
in  which  the  latter  was  defeated.  They  made  a  hero  of  the  captain  of  the 
privateer,  and  his  "claims "  have  been  a  popular  theme  ever  since.  They  have 
not  yet  been  finally  disposed  of,  although  he  obtained  a  largo  sum  of  money 
and  a  vote  of  thanks  from  Congress.  The  claim  is  now  against  our  Govern- 
ment, because  they  did  not  recover  the  damages  from  Portugal,  and  it  is 
alleged  that  Mr.  Wel)ster  neglected  and  mismanaged  the  case,  lie  appears 
to  htive  treated  it  as  groundless.  Our  people,  hearing  but  one  side  of  the 
case,  suuposed  that  the  Portuguese  authorities,  as  well  as  the  British,  were  in 
fault,  riiis  case  shows  the  wisdom  of  leaving  such  disputes  to  arbitration. 
Unon  hearing/  both  sides  the  utter  groundlessness  of  the  claim  was  clearly  es- 
taolisiied. 

It  will  be  observed  that  our  Government  was  more  moderate  then  than 
now.  It  confined  the  claim  to  the  direct  damages,  instead  of  claiming  that 
the  war  would  have  been  shortened  in  duration  if  the  career  of  this  won- 
derful privateer  had  not  been  cut  short  through  Portugal's  non-enforcement 
of  its  duty  as  a  neutral. 


li  '• 


I     !'■ 


20 

becomiiii^  liumiHty  of  a  small  power,  dropped  lior  clnims, 
and  meekly  submitted  to  uu  arbitration  of  tbo  claims  of 
her  arrogant  opponent. 

WANT  OF  MUTUALITY  OF  OUMQATION. 

A  question  may  now  be  raised,  wliether  it  is  competent 
for  the  United  Htates  to  be  a  co?n[)lainant  in  a  case  liko 
that  of  the  Alabama;  for,  if  the  United  States  are  not  lia- 
ble for  the  delinquency  of  a  State,  there  is  no  maluality,  no 
obligation  on  our  part  to  abi«lo  by  the  law  which  we  call  on 
other  nations  to  be  governed  by. 

WE  ARE  ESTOPPED  CY  OUR  PRECEDENTS. 

And  a  further  question  is  pertinent,  whether  we  are  not 
morally  and  equitably  estopped  by  our  own  doctrines  and 
precedents  from  maintaining  that  there  has  been  any  breach 
of  international  duty  by  Great  Britain. 

THE  TRUE  DOCTRINE  OF  NELTRAL  OBLIGATION  THAT  OF  JOHN  Q. 

ADAMS. 

Although  we  refused  to  recognize  in  any  way  the  claims 
of  Portugal,  we  have  adopted  the  doctrine  for  which  they 
contended,  and  seek  to  apply  it  to  others,  although  we 
repudiated  the  application  of  it  to  ourselves.  We  now, 
for  the  purpose  of  tiie  Alabama  claims,  recognize  the  prop- 
osition laid  down  in  M.  de  Figanierc's  dis^patch,  derived 
from  the  auihoritics  referred  to  by  him,  that  a  neutral  is 
bound  to  the  exercise  of  due  diligence  to  prevent  its  citi- 
zens from  going  out  of  its  ports  in  armed  vessels  to  cruize 
against  the  commerce  of  a  friendly  power.  And  then  we 
carry  that  proposition  much  further. 

The  passage  quoted  by  M.  de  Figaniere  from  Vattel,  {h. 
2,  ch.  5,  sec.  72-77,)  d>es  not  support  the  position,  that  a 
neutral  is  under  an  absolute  obligation  to  prevent  its  citi- 
zens from  aiding  or  abetting  either  of  the  belligerents.  It 
merely  asserts  that  the  neutral  sovereign  ought  not  to  will- 
fully portuit  his  subjects  to  do  injury  to  the  subjects  of 


T  OF  JOHN  Q. 


21 

another  State.  Tlio  duty  of  a  neutral  i^  to  observe  non- 
trality  between  the  belligerents,  n<»t  to  participate  in  the 
hoHtilo  operations  of  either  party.  Ami  there  are  even 
exceptions  to  this  rule:  for  inatince,  whore  the  neutral 
power  is  bound  by  treaties,  previous  to  the  war,  to  permit 
one  of  the  belligerents  to  geek  an  asyluni  in  its  ports,  or 
giving  right  of  way  through  the  country  with  its  troops. 

The  position  taken  by  Mr.  Adams  is  not  that  the  Balti- 
more privateers  could  not  have  been  restrained  by  dilh/ence. 
Such  a  position  would  have  been  contrary  to  the  obvious 
truth.  If  the  state  and  federal  authorities  had  employed  a 
sufficient  number  of  detectives  and  active  officers,  the  acts 
complained  of  could  have  been  prevented — acts  which  were 
very  different  indeed  from  the  mere  sale  of  a  ship  to  a  bel- 
ligerent. The  fact  is,  that  the  prosperity  of  Baltimore  wa« 
largely  owing  to  those  privateering  operations.  "What 
Mr.  Adams  contended  was,  that  the  acts  complained  of 
were  not  done  or  authorized  by  the  government  nor  will- 
fully permitted  by  it,  and  that  there  was  no  complicity  or 
connivance  on  its  part  and  that  as  the  courts  were  open  for 
the  prosecution  of  the  offenders  if  they  should  come  within 
the  jurisdiction  and  for  the  restitution  of  the  captured  proper- 
ty if  it  should  be  brought  into  the  United  States,  the  Govern- 
ment could  not  consider  itself  bound  to  indemnify  the 
parties  injured ;  and  he  asserts  that  "  no  nation  can  in  2>rin- 
ciple  nor  can  in  practice  hold  itself  responsible"  under  such  cir- 
cumstances. 

It  is  a  noteworthy  fact,  that  no  nation  ever  has  acknowledged 
a  liability  such  as  that  claimed  in  the  Portuguese  and  Alabama 
cases. 


THE   PORTUGUESE  CASE    COMPARED    WITH    AND   SHOWN   TO   BE 
MUCH  STRONGER  THAN  THE  ALABAMA  CASE. 

In  our  case  against  England,  it  cannot  be  shown  that  any 
one  of  the  Confederate  cruisers  was  fitted  out  and  equipped 
in  England:  they  were  officered  by  Americans,  and  they 
were  got  out  of  the  English  ports  by  stratagems  and  de- 
ceptions, and  were  fitted  out  and  equipped  afterwards. 


Wl 


I  I'; 


22 

When  reasonable  evidence  was  oflfered  by  the  American 
minister  against  suspected  vessels,  they  were  seized.  In  most 
cases  the  suspicion  proved  to  be  unfounded,  and  in  some 
cases  the  English  government  purchased  suspected  vessels 
against  which  no  direct  proof  could  be  obtained — pur- 
chased them  to  prevent  the  possibility  of  their  being  used 
by  the  Confederates.  The  English  government  favored 
the  North  throughout  as  much  as  possible,  without  giving 
to  the  Confederacy  a  casus  belli. 

Contrast  this  with  the  Portuguese  case.  There  the  pri- 
vateers were  armed,  equipped,  and  manned  in  United  States 
ports :  the  officers  and  crews  were  Americans,  the  owners 
were  Americans,  the  business  was  carried  on  openly,  no 
seizures  were  made  to  stop  the  expeditions.  It  is  impos- 
sible to  imagine  a  stronger  case,  and  if  in  any  case  a  nation 
could  be  held  liable  on  principles  of  international  law  for 
the  unauthorized  acts  of  its  citizens  beyond  its  jurisdiction, 
we  were  liable  in  that  case.  But  Mr.  Adams  says  that 
"  by  the  universal  law  of  nations,  the  obligations  of  the 
American  government  extend  no  further"  than  the  limits 
defined  by  him. 

If  a  claim  could  be  made  against  a  nation  because  some 
of  its  citizens  have  committed  acts  which  could  have  been 
prevented  by  skillful  and  active  detectives  and  officers,  the  peace 
of  the  world  would  be  constantly  disturbed,  and  the  smaller 
states  continually  victimized.  A  great  power  would  be  apt 
to  resent  as  an  insult  the  charge  that  it  had  violated  its 
international  duty,  but  the  small  and  weak  powers  would 
have  to  submit. 

REFUTATION  OP  THE  STATEMENTS  IN  OUR    "CASE"    RESPECT- 
ING THE   PORTUGUESE  CLAIMS. 

Our  "case"  professes  to  give  the  substance  of  the  cor- 
respondence between  our  Government  and  that  of  Portugal 
upon  the  claims  above  referred  to.  It  does  not  give  the 
true  substance,  but  only  a  deceptive  version  of  that  cor- 
respondence, as  will  be  clearly  seen  upon  a  comparison  of 
the  above  abstract  with  that  given  in  our  "  case,"  which  is 


a  bundle  of  equivocationB,  concealments,  and  misrepre- 
sentations. 

It  will  be  observed  that  the  Portuguese  minister  applied 
for  amendments  of  our  laws,  and  he  also  asked  our  gov- 
ernment to  stop  the  privateering,  and  failing  in  that,  to 
indemnify  the  victims.  But  according  to  the  correspond- 
ence, as  abridged  in  our  "case,"  the  Portuguese  vir- 
tually confined  themselves  to  requests  for  amendments 
of  the  laws,  which  were  complied  with,  and  on  the 
whole  they  were  immensely  delighted  with  our  per- 
formances. And  our  "case"  asserts  that  "the  gov- 
ernment of  Portugal,  during  the  whole  correspondence, 
offered  no  evidence  to  prove  that  captures  had  been  madehy 
armed  vessels  illegally  fitted  out,  equipped,  or  armed  in 
the  United  States,  nor  even  statements  of  facts  tending  to 
lead  to  the  discovery  of  such  evidence,  which  were  not  at 
once  used  for  the  purpose  of  detaining  such  vessels  or  of 
punishing  the  guilty  parties." 

We  did  not  detain  such  vessels  at  all,  and  as  to  the 
alleged  punishment  of  the  guilty  parties,  M.  de  Figaniere, 
in  his  note  of  November  7, 1850,  says  that  in  every  instance 
"the  claims  of  the  Portuguese  subjects  presented  in  the 
United  States  against  private  individuals,  citizens  of  the 
United  States,  who  were  concerned  in  such  captures,  were 
unavailing."  And  yet  in  our  "  case"  we  actually  boast  of 
the  ^^ measure  of  justice"  applied  by  the  United  States  to 
Portugal ! 

What  does  our  Secretary  of  State  mean,  when  he  asserts 
that  Portugal  offered  "wo  evidence f"  Does  he  mean  that 
scores  of  privateers  could  be  publicly  fitted  out,  manned, 
and  commanded  by  Americans;  sail  from  and  return  to  our 
ports,  and  bring  in  and  sell  their  prizes  in  our  ports ;  and 
that  it  was  for  the  Portuguese  minister  to  hunt  up  witnesses 
to  prove  these  notorious  acts,  and  that  without  such  action 
on  his  part  we  cannot  be  accused  of  a  want  of  "due  dili- 
gence," although  we  did  nothing  to  repress  these  public 
operations  ?    Can  it  be  asserted  that  the  argument  of  our 


.'li 


!'  :i 


lil:;'! 


lij 


1:1- 


!l" 


24 

Secretary  of  State  on  this  part  of  the  case  is  fair,  candid, 
and  truthful  ? 

Our  "case"  says:  "The  claims  lay  buried  until  they 
were  exhumed  by  Mr.  Figaniere  in  1850,  as  an  offset  to 
the  General  Armstrong  case."  It  was,  of  course,  right  for 
us  to  "exhume"  the  Armstrong  case,  which  dates  back  to 
1814,  giving  ?,s  a  reason  for  so  doing  that  the  unfortunate 
condition  of  Portugal  for  many  years  had  kept  the  case  in 
abeyance,  (this  was  alleged  in  the  President's  message  to 
Congress;)  but  it  was  very  unreasonable  for  the  Portuguese 
to  make  any  reference  to  their  claims  against  us,  arising  in 
1817,  1818!^  1819,  and  1820,  and  down  to  1828.  The 
intrepid  audacity  of  this  logic  is  unparalleled. 

It  is  very  evident  that  the  real  reason  why  the  Portu- 
guese claims  slumbered  so  long,  is  to  be  found  in  the  fact, 
that  all  liability  was  positively  denied  on  the  part  of  the 
United  States,  on  the  simple  ground  that  the  law  of  nations 
did  not  make  them  liable.  That  question  was  not  exam- 
ined by  the  Portuguese  government  until  we,  by  raking  up 
the  old  Armstrong  case  of  1814,  put  them  on  the  defensive. 
Upon  an  examination  of  the  authorities  on  international 
law,  it  was  found  that  the  position  taken  by  our  Govern- 
ment in  the  Armstrong  case  was  inconsistent  with  that 
taken  by  them  against  the  Portuguese  claims;  and  the 
question  as  to  the  duties  of  neutrals  is  brought  under  re- 
view, not  only  in  our  claim,  but  also  in  the  Portuguese 
counter  claims.  To  shut  out  the  latter,  whilst  prosecuting 
the  former,  was  unreasonable  and  unjust. 

N"o  reason  for  declining  the  pr6posed  arbitration  of  the 
Portuguese  claims  could  be  offered  other  than  that  given  by 
Mr.  J.  Q.  Adams,  which  ignores  the  doctrine  upon  which 
we  are  now  pressing  the  Alabama  claims. 

Our  doctrine  in  the  Armstrong  case  was,  that  Portugal 
was  bound  absolutely  to  protect  the  neutrality  of  the  harbor  of 
Fayal.  This  was  denied  by  M.  de  Figaniere,  who  reviews 
*he  authorities  referred  to  in  support  of  our  claim,  and 
shows  that  they  have  no  application  to  the  case  in  hand. 
He  says:  "Such  an  obligation  cannot  exist.     And,  indeed, 


\s 


is  fair,  candid, 

ed  until  they 
as  an  offset  to 
urse,  right  for 
dates  back  to 
le  unfortunate 
pt  the  case  in 
's  message  to 
le  Portuguese 
t  us,  arising  in 
1828.  The 
1. 

by  the  Portu- 
id  in  the  fact, 
le  part  of  the 
aw  of  nations 
as  not  exam- 
by  raking  up 
he  defensive, 
international 
our  Govern- 
nt  with  that 
is;   and  the 
ht  under  re- 
Portuguese 
prosecuting 

ation  of  the 
lat  given  by 
upon  which 

at  Portugal 
he  harbor  of 
ho  reviews 
claim,  and 
e  in  hand, 
id,  indeed, 


25 

it  has  always  been  contended  by  the  United  States  that 
they  are  not  bound  to  keep  up  a  military  and  naval  force 
large  enough  to  prevent  their  own  citirons  from  making 
inroads  on  foreign  territory,"  referring,  apparently,  to  the 
invasions  of  Canada,  Texas,  &c.,  by  "sympathizers." 

The  perusal  of  M.  de  Figaniere's  note  to  Mr.  Clayton 
will  leave  the  reader  in  a  state  of  amazement  that  any, 
even  the  most  litigious  lawyer-ridden  people  in  the  world, 
should  have  persisted  in  such  a  claim. 

The  court  of  arbitration  at  Geneva  will  get  from  it  a 
good  inside  view  of  the  reckless  way  we  have  of  getting 
up  cases  againt  other  countries.  It  shows  our  State  De- 
partment to  be  litigious  and  overbearing  in  the  highest 
degree. 

AN  EARLY  PRECEDENT  AGAINST  OUR  PRESENT  DOCTRINE. 

In  our  "  case "  reference  is  made  to  the  treaty  of  "No- 
vember  19, 1794,  between  England  and  the  United  States, 
providing  for  componsation  for  the  seizures  of  British 
ships  made  by  French  privateers  fitted  out  in  our  ports,  and 
to  a  case  which  arose  under  that  treaty,  viz,  the  case  of  the 
Jamaica,  a  vessel  which  had  been  captured  by  one  of  these 
privateers;  but  the  prize  not  having  been  brought  into  our 
ports,  it  was  decided  that  the  case  was  not  covered  by  the 
words  of  the  treaty.  The  decision  is  quoted  in  our  case, 
as  follows : 

*'  The  counsel  for  the  claimant  seemed  to  suppose  that 
the  obligation  to  compensate  arose  from  the  circumstance 
of  the  privateer's  having  been  originally  armed  in  the 
United  States;  but  as  there  is  not  the  smallest  evidence 
to  induce  a  belief  that  in  this  or  any  other  case  the  Gov- 
ernment permitted,  or  in  any  degree  connived  at,  such  arm- 
ing, or  failed  to  use  all  the  means  in  their  powr  to  prevent 
such  equipment,  there  is  no  grouncl  to  support  a  charge 
on  the  fact  that  the  armament  originated  in  their  ports." 

It  is  not  alleged  that  the  equipment  of  the  privateer 
could  not  have  been  prevented  if  the  State  and  Federal 
authorities  had  employed  a  considerable  number  of  detect- 
ives, and  an  adequate  force  to  overcome  all  resistance.    It 


¥■:■ 


26 


is  not  alleged  that  the  equipment  was  secret  or  furtive;  on 
the  contrary,  it  is  well  known  to  have  been  open  and  pub- 
lic, and  in  fact  defiant.  But  as  the  means  of  repression 
in  the  hands  of  the  Government  were  very  small,  it  was 
truly  stated  that  it  had  used  all  the  means  in  its  power, 
and,  therefore,  that  there  was  no  breach  of  good  faith, 
which  alone  was  regarded  as  culpable. 

The  true  question  is  not  whether  "due  diligence"  has 
been  exercised  in  the  sense  contended  for  in  our  "  case," 
but  whether  good  faith  has  been  observed.  In  our  "  case  " 
we  contend  that  it  is  for  Great  Britain  to  show  that  the 
acts  of  British  citizens  complained  of  ^^  could  not  have  been 
prevented."  It  is  clear  that  if  the  onus  probandi  was  really 
with  us  in  like  manner  in  the  case  of  the  Jamaica  and  in 
the  Portuguese  cases,  we  ought  to  have  compensated  the 
sufferers. 

The  doctrine  contended  for  by  our  Secretary  of  State  in 
the  case  of  the  privateer  Armstrong,  submitted  to  the 
arbitrament  of  the  Emperor  of  the  French,  that  a  small, 
weak  power  is  bound  to  prevent  the  capture  of  a  vessel 
within  its  waters  or  pay  for  it,  is  shown  by  the  argument 
of  M.  de  Figaniere  in  his  diplomatic  note  to  our  Govern- 
ment, under  date  of  July  9, 1850,  to  be  untenable.  (Ex. 
Doc.  H.  E.,  No.  85, 1st  Sess.,  82d  Cong.,  page  101.) 

If  that  doctrine  were  sound,  then  it  would  be  correct  to 
say  that  a  nation  cannot  plead  the  weakness  of  its  police 
force,  which  was  in  reality  our  plea  in  the  case  of  the 
Jamaica  just  referred  to,  and  in  the  Portuguese  cases. 

Accordingto  our  "  case,"  the  "due  diligence"  which  we 
say  the  law  of  nations  requires,"  is  the  use  of  "  the  most 
energetic  measures"  to  prevent  the  act  forbidden?  not  the 
mere  exercise  of  the  means  within  the  power  of  the  Gov- 
ernment, if  they  are  inadequate,  but  the  means  which 
might  by  stringent  legislation  and  lavish  expenditure  have 
been  made  available.  We  have  never  held  ourselves 
bound  by  such  a  rule,  and  it  is  certain  that  we  will  never 
submit  to  its  application  to  our  conduct,  whether  other 
nations  choose  to  be  bound  by  it  or  not. 


o 


27 


IMPOLICY  OP  THE  NEW  RULE  AS  TO  "DUE  DILIGENCE  "—ITS 
INCOMPATIBILITY  WITH  OUR  USAGES,  PRINCIPLES,  AND  INSTI- 
TUTIONS. 

It  is  unadvisable  and  impolitic  for  us  to  declare  the  law 
of  nations  to  be,  that  a  nation  shall  be  held  responsible  for 
the  unauthorized  acts  of  its  citizens,  if  it  can  be  shown  thp.t 
the  government  of  tbat  nation  could  have  prevented  such 
acts. 

K  we  admit  that  to  be  the  law  of  nations,  or  if  we  agree 
by  treaty  to  be  bound  by  such  a  rule,  we  shall  undoubtedly 
have  many  serious  reclamations  against  us.  As  observed 
in  the  report  of  the  Committee  on  Foreign  Affairs,  before 
referred  to : 

"  The  institutions  and  traditions  of  the  American  people 
compel  sympathy  for  the  humblest  of  the  human  family 
when  struggling  for  liberty.  Their  literature  is  rank  with 
the  spirit  of  oppressed  races,  grappling  with  tyranny,  and 
nations  fighting  for  independence.  Their  faith  in  these 
ideas  has  been  strengthened  by  the  results  of  their  own 
struggle.  It  is  impossible  for  them  not  to  wish  well  to  the 
cause  of  patriots  everywhere." 

England,  protesting  that  the  rules  agreed  upon,  as  gov- 
erning the  arbitrators,  are  "  not  a  statement  of  principles 
of  international  law,  which  were  in  force  at  the  time  when 
the  claims"  arose;  nevertheless,  "in  order  to  evince  its  de- 
sire of  strengthening  the  friendly  relations  between  the  two 
countries,  and  of  making  satisfactory  provision  for  the  future" 
agrees  that  the  arbitrators  shall  assume,  that  England  un- 
dertook to  act  upon  the  principles  set  forth  in  their  rules. 

What  are  those  rules? 

They  are  in  substance,  that  it  is  the  duty  of  a  neutral 
government  "to  use  due  diligence"  to  prevent  the  departure 
of  any  vessel  from  its  ports,  intended  to  carry  on  war  against 
a  country  at  peace  with  such  neutral  government. 

What  right  had  the  President  and  Senate,  in  the  exer- 
cise of  the  treaty-making  power,  to  alter  the  law  of  nations, 
and  impose  upon  the  country  an  onerous  obligation,  pro- 


!•        'I 


iilr-ii 


m  \^. 


I 


ii''!;! 


I,,  - 


28 

vocative  of  innumerable  and  interminable  foreign  quar- 
rels? 

What  is  "  due  diligence?  " 

In  the  case  presented  by  our  Secretary  of  State,  we  are 
made  to  maintain  that  the  question  does  not  depend  upon 
the  municipal  laws  of  the  accused  country :  it  is  not  whether 
those  laws  have  been  fairly  executed.  It  is,  whether  the 
acts  complained  of  could  have  been  prevented  by  diligence. 
In  our  argument  in  that  case,  wc  ignore  the  restraints  upon 
constitutional  governments,  which  cannot  exercise  any 
arbitrary  control  over  ship-builders  and  merchants. 

"We  are  to  be  responsible,  according  to  that  argument, 
for  the  State  Hws,  when  they  do  not  prohibit  public  meet- 
ings of  sympathizers,  and  also  for  the  consequences  of  the 
liberty  of  the  press. 

By  the  law  of  nations,  a  belligerent  has  no  cause  of  com- 
plaint against  a  nuetral,  on  account  of  the  unauthorized 
acts  of  individual  citizens;  no  nation  is  obliged,  in  deference 
to  the  belligerents,  to  keep  a  large  and  efficient  force  to 
prevent  such  acts. 

The  peculiar  character  of  our  political  system  is  especially 
ill-adapted  to  the  new  doctrine. 

OUR  LATEST  REPUDIATION  OF  THE  RULE. 

At  this  very  moment  we  have  passing  before  our  eyes  an 
illustration  of  the  danger  of  the  anti-American  doctrine. 
It  appears  that,  having  a  large  quantity  of  arms  left  on 
hand  at  the  termination  of  our  civil  war,  our  govern- 
ment desired  to  sell  the  same,  and  did  go  on  selling  up  to 
the  commencement  of  the  war  between  France  and  Ger- 
many, and  then  continued  to  make- sales  just  as  they  had 
done  before. 

Mr.  Sumner  propounds  the  proposition  in  the  Senate 
that  it  was  the  dcty  of  our  Government  to  inquire  whether 
the  purchasers  of  the  arms  intended  to  sell  them  to  either  of 
the  belligerents ;  and  he  holds,  that  unless  they  pursued 
the  inquiry  with  diligence,  we  are  guilty  of  a  violation  of 
international  law. 


»1 


ley  pursuPf 


29 

This  is  a  natural  sequence  to  the  new  doctrine  advanced 
on  our  behalf  in  the  Alabama  case;  a  doctrine  which  we 
should  abandon  at  once,  if  we  do  not  Avant  to  be  always  in 
hot  water. 

Mr.  Sumner's  doctrine  as  to  the  moral  obligations  of  neu- 
trals is  stringent;  he  would  make  it  unlawful  for  our  citi- 
zens to  sell  arras  to  a  poor,  oppressed  people,  having  no 
standing  army  and  no  arsenals.  He  appears  to  consider 
that  a  people  who  are  armed  to  the  teeth  have  a  vested 
right  to  their  military  superiority. 

The  debate  on  the  alleged  sale  of  arras  by  our  Govern- 
ment to  France  brings  out  in  bold  relief  the  unsoundness 
of  the  proposition  in  our  "  case,"  that  the  onus  probandi 
lies  upon  England,  to  prove  that  she  used  due  diligence  to 
prevent  the  sailing  of  ships  from  her  ports  which  were 
adapted  for  war  purposes,  and  which  were  purchased  for 
the  use  of  the  Confederates. 

Just  as  we  are  urging  that  argument,  a  question  arises  in 
the  Senate  whether  the  good  name  of  the  American  Gov- 
ernment had  been  compromised  by  the  sale  of  arms,  most 
of  which  (not  all)  got  into  the  hands  of  the  French. 

The  Goverimient  laid  down  the  rule,  that  it  would  sell 
no  arms  to  the  known  agents  of  either  belligerent.  Prus- 
sia wanted  to  be  a  purchaser  direct  from  the  Government 
and  so  did  France,  and  both  were  refused. 

The  assailants  of  the  administration  maintained  that, 
"if  arms  were  sold  to  parties  where  there  was  an  eminent 
probability  that  they  would  find  their  way  'ito  the  hands 
of  the  belligerents,"  then  the  rule  laid  down  by  the  Gov- 
ernment was  a  mockery;  and  Mr.  Schurz  argued  that  either 
there  was  "a  blindness,  corapared  with  which  the  blindness 
of  the  mole  is  clairvoyance,  or  else  it  was  a  piece  of  transpa- 
rent juggler^'." 

On  the  other  hand,  the  supporters  of  the  administration 
relied  upon  what  they  considered  to  be  the  self-evident 
rule,  that  the  Government  was  presumed  to  have  kept  faifh, 
and  that  it  was  to  be  taken  for  granted  that  our  Govern- 
ment was  blameless  in  these  transactions,  and  the  proof  that 


QUEEN'S  UNIVERSITY  LIBRARY 


1 1 

II  i' 


W^'\' 


ii'ii'  I 


80 

it  was  not  blameless  was  with  those  who  had  preferred  the 
charges. 

Is  it  to  bo  maintained  that  such  favorable  presumptions 
are  to  be  raised  only  in  favor  of  our  Government,  and 
that  foreign  governments  are  to  be  treated  in  a  different 
way,  in  the  style  of  our  "  case,"  and  deemed  guilty,  unless 
they  can  prove  their  innocence? 

OUR  CLAIMS  TOTALLY  UNFOUNDED. 

Having  disposed  of  the  basis  of  the  extravagant  doctrine 
upon  which  our  claims  are  founded,  it  is  unnecessary  to 
examine  the  superadded  points  of  the  "case,"  such  as  the 
following: 

1.  That  municipal  laws  putting  restraints  upon  indi- 
viduals, to  prevent  their  interfering  in  foreign  wars,  or  aid- 
ing either  or  both  parties,  must  be  fully  enforced,  or  there 
is  a  casus  belli.  (That  clearly  is  not  so  in  relation  to  many 
laws,  such  as  those  restricting  trading  with  the  belliger- 
ents.) 

2.  The  directions  given  to  the  colonial  governors  as  to 
the  treatment  of  the  cruisers  of  both  parties  created  obliga- 
tions on  the  part  of  England  towards  the  United  States,  so 
that,  if  undue  hospitality  was  accorded  to  a  confederate 
cruiser,  England  must  pay  for  the  captures  made  by  that 
cruiser  afterwards. 

3.  That  a  complaint  made  by  the  British  government 
against  the  confederate  authorities,  that  they  organized 
conspiracies  to  evade  British  laws,  sustains  a  complaint 
of  the  United  States  against  England,  that  she  connived 
at  such  proceedings. 

4.  That  English  ports  were  made  Sybase  oi  military  opera- 
tions against  the  United  States  by  the  sale  of  confederate 
cotton  and  the  application  of  the  proceeds  to  the  purchase 
of  arras,  and  that  those  ports  were  the  base  of  military 
expeditions  against  the  United  States,  as  some  vessels 
adapted  for  war  purposes  got  away  from  them,  and  were 
afterwards  converted  into  war  ships. 

The  fallacy  of  these  propositions  is  sufficiently  appa- 


\i;PII 


(« 


81 

rent  on  their  face.  They  simply  serve  to  show  a  rollicky 
independence  of  common  sense  in  the  statement  of  the 
"case:" 

In  the  presentation  of  "  the  base  of  operations "  theory, 
there  is  a  convenient  obliviousness  of  our  own  conduct 
very  recently  in  relation  to  the  supply  of  arms  to  Mexico 
and  France.  Of  course,  New  York  was  not  a  base  of  that 
kind  for  France ;  but  Liverpool,  under  the  like  circum- 
stances, (with  the  single  but  conclusive  point  of  difference, 
that  the  United  States  are  the  parties  complaining,)  was  a 
base,  a  centre,  a  pivot  of  that  great  iniquity,  the  supply  of 
arms  to  the  Confederates,  and  therein  there  was  a  gross 
violation  of  the  law  of  nations,  as  laid  down  by  us  for  this 
particular  occasion. 

In  our  "case"  we  treat  it  as  a  self-evident  proposition, 
that  it  was  wicked  to  do  anything  which  "  deprived  the 
United  States  of  the  benefit  of  their  superiority  at  sea;" 
and  our  "case"  f.olemnly  propounds  that,  if  such  conduct 
is  sanctioned,  it  will  lead  to  the  horrible  consequence,  that 
"a  weaker  party  hereafter  may  draw  upon  the  resources 
of  a  strong  neutral,  in  its  effort  to  make  its  strength  equal 
to  that  of  its  antagonist."  It  is  assumed,  as  a  matter  of 
course,  that  a  people  weak  in  military  power,  but  strong  in 
pecuniary  resources,  in  consequence  of  having  pursued  the 
profitable  arts  of  peace  instead  of  the  art  of  war,  should 
succumb  at  once  to  the  dictation  of  a  Bonaparte,  and  not 
shock  the  iuoral  sense  of  American  expounders  of  the  law 
of  nations,  by  striving  to  maintain  freedom  by  the  use  of 
base  lucre. 


ADDITIONAL  OBJECTIONS,  FROM  THE  AMERICAN  POINT  OP  VIEW, 
TO  THE  NEW  THEORY  OF  INCIDENTAL  DAMAGES. 

The  question  now  agitating  the  public  mind  is,  whether 
we  shall,  after  admitting  that  our  old  cherished  doctrine, 
as  laid  down  by  John  Q.  Adams,  is  untenable,  go  the  length 
of  insisting  that  the  law  shall  be  declared  by  the  board  of 
arbitrators  to  be  so  stringent,  that  we  shall  in  future  cases 
have  to  pay  all  the  indirect  losses  which  may  be  sustained 


'i:'i:i 


82 

by  the  people  of  n  foreign  country  througli  the  acta  of  our 
filibuHters  and  sympathizers,  when  it  can  be  shown  that  by 
diligence  the  State  and  federal  authorities  could  have  pre- 
vented their  movements. 

For  example,  suppose  funds  are  openly  collected  in  New 
York  to  supply  men  with  money  and  arms  to  assist  rebels, 
or  even  a  regularly-recognized  belligerent  power  in  Cuba 
or  Mexico,  or  Canada:  shall  our  Government  he  liable  to 
pay,  not  only  for  all  the  damage  these  sympathizers  may 
do,  but  also  for  all  the  indirect  and  consequential  injury 
which  may  be  sustained  by  reason  of  their  act^ — for  ex- 
ample, the  prolongation  of  the  war,  the  loss  of  commerce, 
&c. 

Of  course,  being  a  powerful  nation,  we  could  with  im- 
punity ignore  any  such  claims  against  us,  and  no  doubt 
would  do  so.  If,  for  instance,  there  should  be  an  invasiovx 
of  Canada  by  a  few  thousand  Irishmen,  after  many  public 
meetings,  pi-oclamations  of  "head  centers,"  and  public  col- 
lection of  funds,  &c.,  all  of  which  might  have  been  easily 
prevented,  will  our  Government  pay,  not  only  for  the  barns 
and  houses  destroyed,  and  the  horses  and  cattle,  &c.,  cap- 
tured, but  also  the  expenses  occasioned  by  the  military 
preparations  to  repel  this  invasion,  and  the  Ic'^os  sustained 
by  tradesmen,  mechanics,  and  farmers,  by  the  interruption 
of  their  business? 

We  repeat  the  question,  what  is  to  become  of  the  smaller 
powers,  if  such  a  doctrine  is  to  be  recognized?  As  to  the 
great  powers,  they  will  never  submit  to  any  application  of 
it  to  themselves,  but  the  smaller  ones  could  all  be  devoured 
by  it. 


THE   ARBITRATION. 

England  has  agreed  to  submit  to  arbitration  the  question, 
whether  she  was  guilty  of  negligence  in  respect  to  the  es- 
cape of  the  Alabama  from  an  English  port;  and  also 
whether  she  is  liable  for  the  acts  of  certain  other  confeder- 
ate cruisers.  As  to  the  Alabama,  it  will  be  recollected 
that  she  was  not  fitted  out  and  armed  as  a  ship-of-war 


whoii  hHc  slipped  out;  Imt  tlmt  hIio  received  ber  arnmmont 
nftorwnrds,  at  u  place  beyond  Knglirfh  Jurisdiction.  Tlie 
claim  is  8et  up  against  lOngland  on  the  ground  that,  if  due 
diligonco  had  been  used,  it  would  have  boon  found  out  that 
it  was  intended  to  have  her  used  as  a  confederate  cruiser. 
England  is  willing  to  have  the  case  adjudged  iipon  tlie 
principle  that  she  shall  be  held  responsible,  if  such  alleged 
no:  ligence  can  be  shown.  England  docs  not  admit,  how- 
ever, that  such  liability  was  imposed  by  the  law  of  nations 
existing  at  the  time;  she  understands  the  law  of  nations  to 
be  as  ex[)Ounded  by  Mr.  J.  Q.  Adams  in  the  Portuguese 
ciiso;  but  she  appears  to  have  been  willing  to  have  such  a 
doctrine  establislied  at  our  instance,  as  a  precedent  for  our 
future  guidance. 
According  to  the  New  York  Herald,  February  6, 1872 — 

"It  was  thought  by  many  that  England  had  cunningly 
inveigled  this  country  into  the  new  rules  regarding  the 
duty  of  neutrals,"  and  "the  treaty  was  a  cunning  piece  of 
strategy  on  the  part  of  England  to  save  herself  in  the  fu- 
ture." 

Perhaps  she  supposed  she  could  aftbvd  to  pay  sometliing 
for  our  adoption  of  the  new  doctrine.  Her  diplomatists 
may  have  imagined  that  it  would  tend  to  prevent  any  more 
filibustering  expeditions,  or  any  active  sympathy  against 
her  in  any  of  her  wars  with  other  nations. 


THE  ADVANTAGE   OF   THE   NEAV  RULE   TO    ENGLAND   IN    FUTURE 
CASES   PROBLEMATICAL. 

It  may  be  questioned,  however,  whether  it  would  not  have 
been  better  for  both  parties  if  they  had  let  the  old  law  re- 
main undisturbed,  relying  upon  such  municipal  laws  as 
each  nation  might  from  time  to  time  deem  it  right  to  enact 
and  enforce  for  the  preservation  of  neutrality.  Such  mat- 
ters should  be  left  to  the  good  will  of  the  nations,  and 
should  not  be  hampered  by  entangling  contracts.  So  soon 
as  an  absolute  obligation  is  created,  wc  have  a  fruitful 
source  of  quarrels. 

The  same  remark  applies  to  extradition  treaties.  They 
8 


Il 


84 

onght  to  bo  uboHsbod,  and  oacb  nation  lotl  to  legislate  or 
it  pleases  in  respect  to  the  extradition  of  alleged  ott'endera. 
Tliirt  legiHlatinii  might  be  eoiidtictod  on  the  pri?iciplo  of 
reciprocity.  When  tbero  is  a  treaty  obligation  to  surrender 
fngitivos,  there  arc  frequent  causes  of  dis[)Ute.  For  in- 
stance, if  Kossuth  had  been  demanded  by  Austria,  or  John 
Mitchell  by  England,  or  members  of  the  Paris  commune 
by  franco,  would  they  have  been  given  up? 

WHY  KNOLAND  HAS  GOOD  RIGHT  TO  NOTIFY  US  THAT  SHE  WILL 
NOT  GO  INTO  THli:  DISCUSSION  OF  THE  QUESTION  OF  INCI- 
DENTAL DAMAGES — THE  EFFECT  OF  THAT  NOTIFICATION — 
FAMILIAR  ILLUSTRATIONS. 

If  England  notifies  us  that  she  does  not  consider  the  ar- 
bitrators tc  have  power  to  award  indirect  damages,  wo 
flhall,  if  we  proceed  with  the  arbitration,  do  so  with  full 
knowledge  that  any  award  of  indirect  damages  will  be  a 
nullity,  as  it  will  be  disregarded  by  the  English  gfivern- 
meiit.  The  submission  to  arbitration  is  a  purely  voluntary 
ngretnient;  and  if  there  is  an  irreconcilable  misunderstand- 
ing about  its  scope  and  mearing  on  any  point  of  real  im- 
portance, it  should  be  abandoned.  But  our  abandonment  of 
the  Jijrbit  ration,  on  the  ground  tliat  England  will  not  submit 
•to  au  award  of  the  indirect  damages  claimed  by  the  Amer- 
lioan  lawyers  in  the  case,  would  be  frivolous,  as  the  point  is 
not  an  important  one,  the  claim  being  manifestly  untenable. 

If  the  submission  of  counter  claims  against  the  United 
States  should  be  in  general  terms,  and  the  arbitrators  should 
award  the  payment  of  the  Confederate  bonds  held  by  for- 
eigners, we  should  unquestionably  treat  the  award  as  void, 
whether  we  notified  or  not  our  intention  so  to  do  during  the 
progress  of  the  case.  But  it  would  be  courteous  to  intimate 
on  the  preseiitiition  of  the  claim  that  it  would  not  be  sub- 
mitted  to  in  any  event. 

The  case  may  be  compared  to  an  agreement  to  submit 
a  question  of  indebtedness  to  an  arbitrator.  The  alleged 
debtor  may,  for  tbe  sake  of  peace,  be  willing  to  leave  the 
question  of  indebtedness  to  the  decision  of  a  mutual  friend ; 


hut  whnt  is  the  allo^od  debtor  to  do,  if  lie  finds  that  his 
oppoMC'iit  claims  bft«>ro  the  mbitrator,  not  merely  the  debt 
and  interest,  but  indirect  damages  for  the  non-payment, 
such  as  the  profits  ho  might  have  made  in  a  certain  specu- 
lation with  the  money,  it*  it  had  been  paid  when  due;  the 
losses  he  has  sustaiticd  by  being  declared  a  bankrupt, 
which  ho  could  have  averted,  if  he  had  received  the 
money  in  question? 

The  alleged  debtor  may  have  been  willing  to  have  the 
comparatively  unimportant  question  of  the  indebtedness 
left  to  the  decision  of  the  party  selected,  but  may  not  be 
willing  to  place  his  whole  fortune  at  the  disposal  of  the  ar- 
bitrator. If  he  be  an  honorable  man,  he  will  at  once  notify 
the  other  party  that  he  will  regard  any  action  of  the  arbi- 
trator on  such  claim  for  indirect  damages  as  an  excess 
of  his  power  and  jurisdiction,  and  will  decline  to  go  into 
the  evidence  on  that  subject.  He  will  give  this  notifica- 
tion, in  order  that  there  may  bo  no  misunderstanding  lead- 
ing to  a  fruitless  inquiry.  Ho  will  not  remain  silent  until 
the  decision  of  the  arbitrator  is  given,  and  then,  if  it  be 
given  against  him,  declare  it  void.  If  the  award  be  sub- 
ject to  judicial  scrutiny,  of  course  the  arbitrators  can  be 
kept  within  the  scope  of  the  inquiry  actually  submitted  to 
them,  and  the  protest  in  such  a  case  will  be  a  mere  act  of 
courtesy,  or  to  save  time. 

That  the  American  commissioners  did  not  expect  or  in- 
tend to  raise  before  the  arbitration  the  question  now  raised 
by  the  "case,"  in  respect  to  remote  consequential  damages, 
sufiiciently  appears  from  the  fact  that,  by  the  terms  of  the 
treaty,  the  assessors  are  to  inquire  what  amount  of  dam-> 
ages,  if  any,  ought  to  be  paid  for  each  vessel ;  which  excludes 
the  idea  that  any  amount  could  be  awarded  to  be  paid  for 
the  prolongation  of  the  war,  seeing  that  such  prolongation 
could  not  be  attributed  to  the  operations  of  any  single 
vessel. 

It  is  not  reasonable  to  suppose  that  England  intended  to 
submit  the  question  to  the  decision  of  arbitrators,  whether 
she  was  bound  to  pay  some  thousands  of  millions  of  dollars 


r  !:!1: 


36 

for  ail  nllej?ed  neglect  of  police  dut}'.  She  might  not  ap- 
proliend  an  adverse  decision,  but  she  might  well  object  to 
an  admission,  that  the  new-fangled  doctrine  of  the  liability 
of  nations  for  the  unauthorized  acts  of  its  citizens  could 
be  expanded  to  such  an  absurd  extent. 

THE  STATE  DEPARTMENT  ARRAIGNED  FOR  ITS  GROgS  INCON- 
SISTENCY ON  QUESTIONS  OF  INTERNATIONAL  LAW — N0TA15LE 
ILLUSTRATIONS    GIVEN. 

The  case  has  now  fallen  into  the  hands  of  lawj^ers  who 
are  struggling,  not  for  truth,  but  for  victory. 

We  have  had  too  much  law  logic  and  special  pleading  in 
our  diplomacy,  and  it  has  too  often  been  the  practice  for 
our  Secretaries  of  State  to  indulge  in  long  legal  disserta- 
tions, in  which  we  will  find  a  total  disregard  of  consist- 
ency, of  established  principles,  and  of  American  policy. 
Thus,  in  the  dispute  with  England  about  the  alleged  viola- 
tion of  our  neutrality  laws  by  the  British  minister  and 
consuls,  Mr.  Gushing  wrote,  in  the  shape  of  diplomatic  notes, 
a  large  law  book,  in.  which  the  leading  proposition  is,  that 
it  is  a  violation  of  the  law  of  nations  for  an  English  official 
to  advcvtise  in  the  United  States  an  invitation  to  British 
citizens  to  return  to  their  native  country.  That  was  called 
"seducing"  the  inhabitants  of  the  United  States:  Mr.  Gush- 
ing claiming,  virtually,  that  we  held  a  monopoly  of  the 
right  of  seduction.  Foreigners  could  throw  off  their  alle- 
giance to  their  native  country,  and  could  rightfully  be  in- 
vited or  seduced  to  do  so;  but  it  was  wrongful  to  seduce 
any  body  in  the  United  States  to  go  into  a  foreign  military 
service:  not  because  the  act  of  Gougress  forbade  it,  but 
because  "the  law  of  nations"  denonficed  it — a  proposition 
palpably  untenable. 

That  doctrine  served  to  snub  the  English  and  delight 
the  Russians.  Of  course  it  was  completely  ignored  by  us 
when  we  wanted  men  for  our  armies,  and  we  got  a  good 
many  from  the  British  provinces,  without  any  regard  to 
the  seduction  theory. 

Then,  in  relation  to  the  declaration  of  the  European 


87 

powers  against  privateering,  we  had  from  our  State  De- 
partment a  long  legal  essay,  in  which  it  was  affirmed  to  be 
the  modern  law  and  usage  of  civilized  nations,  that  private 
property  should  not  be  interfered  with  in  war  by  land,  and 
it  was  inferred  that  private  property  should  enjoy  immu- 
nity at  sea,  and  the  adoption  of  that  rule  was  suggested  by 
way  of  amendment  to  the  rule  against  privateering.  (Let- 
ter of  Mr.  Marcy,  Secretary  of  State,  to  M.  de  Sartiges, 
the  French  minister  at  Washington,  dated  July  28,  1856, 
on  the  declaration  of  the  maritime  powers  of  Europe  con- 
cerning maritime  law,  privateering,  &c.)  Soon  after  we 
showed  our  adherence  to  this  doctrine  by  destroying  the 
dwelling-houses  and  crops  of  the  inhabitants  of  the  seceded 
States,  after  fully  acknowledging  them  to  be  belligerents. 
And  it  will  be  found,  ou  referring  to  Kent's  Commenta- 
ries, Vol.  1,  Lecture  5,  (7th  edn.,)  that  when  we  were  at 
war  with  Mexico,  Mr.  Marcy,  then  being  Secretary  of  War, 
revoking  previous  instructions,  directed  General  Taylor  to 
levy  contributions  on  the  Mexicans,  "without  paying  or 
engaging  to  pay  therefor;"  whereupon  the  annotator  ob- 
serves, that "  the  principle  of  kindness  and  liberality  towards 
the  enemy  seems  to  be  oi  a.  flexible  character."  As  flexible, 
it  would  appear,  as  the  principles  of  our  statesmen  when 
dealing  with  the  law  of  nations. 


SU(5GESTED  SUPERVISION  BY  COXGllESS — THE  CASE  LAID  BEFORE 
THE  ARBITRATORS  HIGHLY  OBJECTIONABLE,  AND  CALCULATED 
TO  CREATE  ILL-WILL. 

There  is  only  one  thing  we  have  been  always  consistent 
in,  and  that  is  our  steady  adherence  to  an  illustrious  pre- 
cedent. With  us  the  single  question  has  always  been,  whose 
ox  has  been  gored,  and  we  have  applied  the  law  accord- 
ingly. The  vagaries  of  our  State  Department  in  matters 
of  international  1  iw  require  repression,  and  it  is  high  time 
for  Congress  to  take  the  matter  in  hand. 

A  good  deal  of  dangerous  popularity  hunting  has  been  in- 
dulged in  by  those  who  have  had  the  management  of  our 
foreign  relations.     The  public  have  been  excited  by  the 


i 


m 


ii-;:;'!i!i 


..,   :   li|il!':■ 


t'li',': 


98 

recital  of  imaginary  grievances,  and  wrought  up  to  a  pitch 
of  rage  and  indignation  pretty  much  as  the  client  who,  on 
hearing  his  wrongs  eloquently  depicted  by  his  lawyer, 
became  much  affected  and  exasperated,  he  not  having 
previously  been  aware  of  the  depth  of  his  grievances. 

Most  especially  has  this  been  the  case  in  relation  to  com- 
plaints against  England,  it  being  known  that  the  public 
mind  was  highly  excitable  on  the  subject  of  any  supposed 
wrong-doing  of  that  power. 

The  arbitration  was  agreed  to  by  England,  *'  in  order  to 
evince  its  desire  to  strengthen  the  friendly  relations  be- 
tween the  two  countries;"  and  now  we  have  a  wild,  irri- 
tating case  or  brief  made  up  in  the  State  Department,  and 
this  libel  has  been  translated  into  several  languages  and 
circulated  amongst  foreigners.  How  that  is  to  promote 
good  will  between  the  two  countries  is  not  perceived. 

Suppose  Spain  to  be  complaining  of  invasions  of  Cuba 
by  large  bodies  of  American  citizens,  organized  in  the 
United  States,  or  England  to  be  complaining  of  a  Fenian 
raid  into  Canada  or  hostile  demonstration  on  the  frontier, 
how  would  we  treat  the  complaint,  if  it  were  couched  in 
language  charging  our  Government  not  merely  with  re- 
missness, but  with  complicity  or  connivance  and  tricky 
dodges  and  evasions?  And  suppose  that,  in  support  of 
this  insulting  charge,  the  speeches  of  a  few  congressmen 
and  articles  in  newspapers  should  be  cited  as  sustaining  it, 
would  not  our  press  and  our  people  ridicule  the  reasoning 
and  resent  the  insult?  And  yet  that  is  the  st3'le  in  which 
our  "case"  is  got  up.  It  is  a  stjle  which  we  would  not 
tolerate  if  applied  by  others  to  ourselves;  and  it  is  especial- 
ly improper  where,  for  the  sake  of  peace,  the  complaint  is 
left  to  arbitration. 

The  argument  of  the  case  in  respect  to  incidental  dama- 
ges will  be  regarded  all  over  the  world  as  preposterous. 

It  is  said  that  Mr.  Evarts  atid  Mr.  Cushing  are  not  re- 
sponsible for  "the  case;"  that  they  disapprove  of  it;  and 
that  it  is  entirely  the  work  of  Mr.  Davis^,  the  Assistant 
Secretary  of  State.     Whether  that  be  so  or  not,  it  should 


■■<**'  lilMiil.. 


8d 

not  be  allowed  to  remain  as  the  authoritative  exposition  of 
oar  case.  Congress  should  not  allow  the  Department  of  the 
Secretary  of  State  to  run  riot  on  our  foreign  relations.  In 
fact,  a  vigorous  supervision  should  be  exercised  particular- 
ly by  the  Senate  over  the  department. 

THE  TRUE  CONSTHUCTION  OF  THE  NEW  RULE  WHICH  WE  SHOULD 

CONTEND  FOR. 

The  rule  that  a  nation  shall  be  held  to  due  diligence 
does  not  import  that  a  nation  is  bound  at  all  events  to  keep 
its  citizens  from  injuring  those  of  another  country.  The 
unlawful  actc  of  a  few  individuals  can  hardly  be  prevented 
by  the  ordinary  means  of  preserving  the  public  peace. 

The  fact  that  individuals  have  violated  the  law  does 
not  raise  the  presumption  of  a  want  of  due  diligence  on 
the  part  of  the  Government. 

This  reasonable  construction  of  the  rule  which  England 
has  agreed  to  be  bound  by  may  prevent  us  from  maintain- 
ing our  case  or  even  presenting  a  plausible  argument  upon 
it.  The  fact  is,  we  got  up  a  false  clamor  in  a  time  of  pub- 
lic excitement,  and  we  ought  not  now  to  endeavor  to  bol- 
ster it  up  by  unfair  arguments,  such  as  the  proposition  in 
our  "case,"  "that  the  burden  of  proof  will  be  upon  Great 
Britain  to  show  that"  the  acts  complained  of  "could  not 
have  been  prevented." 

One  illustration  of  the  construction  of  the  new  rule  con- 
tended for  in  the  case  submitted  by  us  to  tht  arbitrators  will 
suffice.  The  Florida  was  one  of  the  Confederate  cruisers 
obtained  in  England.  While  she  was  in  England  no  evi- 
dence affecting  her  of  unlawful  intention  was  obtained,  but 
the  case  argues  thus:  "That  her  departure  from  the  juris- 
diction of  Great  Britain  might  have  hem  j^revented,  after  the 
information  furnished  by  Mr.  Adams,  would  seem  to  be 
beyond  doubt.  And  that  a  neglect  to  prevent  such  departure 
was  a  failure  to  use  the  *due  diligence,'  called  for  by  the  sec- 
ond clause  of  the  first  rule  of  the  treaty,  obviously  follows 
the  last  conclusion." 

Let  us  apply  this  reasoning  to  the  case  of  the  Hornet. 


P:\yX 


if  ■  '::i 


iiii' 


"I'll,  ;•' 


ill'''!;!? 


m'y 


i 


m 


''*!••  ! 


40 

The  Spanish  consul  at  New  York  informed  the  district 
attorney  there  that  the  Hornet  was  on  the  eve  of  departure 
from  New  York,  upon  an  illegal  expedition,  in  violation  of 
the  proclamation  of  the  President  of  October  12,  1870. 
The  district  attortiey  replies,  December  8,  1870,  to  the 
Spanish  consul,  that  there  was  no  proof  authorizing  him 
to  seize  the  Hornet;  says  he  understands  she  is  going  to 
Nassau;  and  adds,  "what  her  intentions  may  be  on  reach- 
ing that  port  are  things  that  remain  nnproven." 

Now,  is  the  idea  to  be  tolerated,  that  we  should  be  liable 
for  the  acts  of  the  Hornet,  because,  after  the  information 
furnished  by  the  Spanish  consul,  the  departure  of  the  ves- 
sel might  have  been  prevented.  It  is  too  absurd  for  serious 
discussion. 

WHY  THE   CLAIMS   SHOULD   HAVE   BEEN  ABANDONED   UPON   THE 
RECONSTRUCTION  OF  THE  UNION. 

There  is  considerable  force  in  Lord  Redesdale's  argu- 
ment, that  we  are  equitably  estopped  from  setting  up  the 
claims  in  question,  because  the  wrong  complained  of  was 
perpetrated  by  those  with  whom  we  are  now  in  full  part- 
nership, viz,  the  southern  States. 

From  whatever  point  of  view  we  examine  the  matter, 
the  peculiarity  of  the  combination  or  union  of  the  States 
— sovereign  States  in  many  respects;  but  forming  one  na- 
tion— becomes  important.  Its  bearing  upon  the  recognition 
of  the  Confederate  States  as  a  belligerent  power  cannot  be 
overlooked,  nor  can  the  fact  that  the  States  once  separated 
de  facto  are  now  readmitted  into  the  Union,  and  form  nearly 
one  half  of  the  body  called  the  United  States,  the  com- 
plainants in  the  case  before  the  Geneva  board  of  arbitra- 
tion ;  and  if  an  amount  of  monej'  be  awarded  to  be  paid 
by  England  to  the  United  States,  the  very  States  whose 
cruisers  made  the  captures  complained  of  will  be  the  joint 
recipients  of  the  compensation  paid  for  those  captures,  and 
will  have  the  joint  control  and  disposition  of  the  same. 

An  in demn ideation  for  the  cnptures  made  by  the  Con- 
federate cruisers  could  have  been  obtained  from  the  con- 


I 


"^^  ■■'  il^v... 


41 


!IED   UPON   THE 


tnmg  one  na- 


quered  party,  just  aa  Germany  has  recently  exacted  an 
indemnification  from  France.  h 

The  United  States  have  extinguished  this  right  by  re- 
storing the  old  Union  of  the  States.  That  act  renders  the 
further  prosecution  of  the  claims  inequitable,  unseemly, 
and  indecorous. 

That  event  makes  a  great  deal  of  difference  in  the  ques- 
tion, seeing  that,  when  the.  ex-Confederate  States  were  held 
as  conquered  provinces,  it  could  not  be  said  that  they  were 
participants  in  the  receipt  of  the  money. 

In  addition  to  the  curious  fact  that  some  of  the  com- 
plainants are  the  perpetrators  of  the  injuries  complained 
of,  we  have  another  extraordinary  feature,  the  consequence 
of  the  modern  practice  of  marine  insurance,  viz,  there  are 
scarcely  any  parties  really  aggrieved. 

This  fact  conduces,  with  many  others,  to  show  the  purely 
litigious  character  of  the  claims  in  question.  Even  if  the 
United  States  Government  should  obtain  an  award  of 
damages,  it  would  not  know  what  to  do  with  them,  as  most 
of  the  parties  whose  property  was  captured  were  covered 
by  insurance,  and  the  insurance  companies  were  indemni- 
fied by  higher  rates  of  insurance — war  rates.  In  some 
cases  the  underwriters  were  British  companies.  Are  the 
British  »to  be  called  upon  to  pay  a  second  time  in  those 
cases  ? 


WHO  ARE  THE  PARTIES  INJURED. 

The  alleged  moral  or  equitable  obligation  of  a  neutral, 
to  indemnify  the  sufferers  from  its  neglect,  is  the  only 
foundation  upon  which  the  direct  claims  can  possibly  be 
raised;  they  cannot  be  sustained  on  the  ground  that  the 
neutral  should  be  punished  for  its  negligence. 

Our  Government  presents  these  claims  on  the  assump- 
tion that  the  damages  that  may  be  recovered  on  account 
of  the  captures  specified  shall  be  distributed  amongst  the 
sufferers  by  those  captures.  Let  it  be  shown  that  there 
are  scarcely  any  parties  entitled  to  receive  anything  on 
that  account,  and  it  follows  that  the  complainants  have  no 


48 

standing  in  court  on  most  of  the  direct  claims.  The  case 
then  stands,  in  the  main,  upon  the  claims  for  fanciful,  im- 
aginary, consequential,  or  indirect  damages,  sustained  hy 
ike  United  States  now  composing  the  Union,  and  the  acts 
out  of  which  those  claims  arise  are  the  acta  of  some  of 
those  States  in  carrying  on  a  war  with  the  others! 

If  any  other  country  should  get  up  such  a  case  against 
the  United  States,  it  would  be  treated  here  with  universal 
ridicule  and  contempt.  It  would  not  be  submitted  to 
arbitration ;  it  would  not  be  listened  to. 


ii-i^;! 


HOW  FAR  THE  DEFENCES  ARE  LIMITED  BY  THE  TREATY. 

t 

It  may  possibly  be  contended  that,  by  the  terms  of  the 
treaty,  the  case  is  narrowed  down  to  the  single  question, 
whether  "due  diligence"  was  used. 

That  argument  attaches  too  much  importance  to  the 
provision  in  the  treaty,  that  the  arbitrators  should  assume 
that  the  English  government  had  undertaken  to  act  upon 
the  principles  set  forth  in  the  rules  specified. 

Suppose  it  appears  that  her  conduct  will  not  bear  that 
test,  but  it  also  appears  that  the  complainants  have,  never- 
theless, no  just  cause  of  complaint,  should  the  award  be 
in  favor  of  the  complainants? 

The  arbitrators  should  not  award  damages  to  the  United 
States  in  a  case  where  it  is  clear  that  they  would  refuse  to 
pay  damages  if  they  were  the  defendants.  They  should 
not  award  damages  to  be  paid  to  the  wrong-doers.  There 
is  nothing  in  the  provisions  of  the  treaty  to  compel  the 
arbitrators  to  work  such  an  injustice. 

On  the  contrary,  the  treaty  expressly  provides,  that  the 
arbitrators  shall  be  governed  by  the  rules  specified,  *'  and 
by  such  principles  of  international  law,  not  inconsistent  there- 
with, as  the  arbitrators  shall  determine  to  have  been  appli- 
cable to  the  case." 

■  The  rule  that  a  neutral  shall  bo  bound  to  use  due  dili- 
gence does  not  conflict,  for  example,  with  the  proposition 
that  the  party  doing  the  injury  complained  of  ought  not  to 


l:i  '  ■-15 


w 


E  TREATY. 


48 

claim  damages  from  another  party,  on  the  ground  that  he 
might  have  prevented  the  perpetration  of  that  injury. 

The  arbitrators  will  be  governed  by  international  law 
and  general  principles  of  right. 

Moreover,  in  ascertaining  what  effect  is  to  be  given  to 
England's  obligation  to  use  ^^due  diligence,"  it  is  proper  to 
see  what  degree  of  diligence  the  complainants  recognize  as 
"due  diligence."  For  the  pui-pose  of  this  controversy 
there  can  be  no  more  due  to  them  than  from  them.  Hence 
the  pertinency  of  the  inquiry  which  has  been  pursued  in 
this  article:  What  do  the  United  States  consider  to  be 
"due  diligence,"  in  cases  where  their  citizens  commit 
wrongful  acts,  to  the  detriment  of  the  people  of  other 
countries.  It  is  very  evident  that  they  do  not  hold  them- 
selves bound  to  insure  against  those  acts — do  not  recognize 
their  liability  for  them,  although  it  can  be  shown  that  they 
might  have  been  prevented  by  careful  precautions  and 
diligent  supervision. 


THE   ARBITRATION  BENEFICIAL  TO  US,  AND  A  GOOD  PRECEDENT, 
EVEN  IF  THE  DECISION  BE  AGAINST  US. 

It  may  possibly  be  suggested  that  this  discussion  shows 
that  the  arbitration  should  be  abandoned.  Not  so,  unless, 
indeed,  the  claims  are  abandoned  as  untenable. 

The  public  did  not  understand  the  real  merits  of  the 
controversy,  having  heard  but  one  side  of  it,  but  was  will- 
ing to  leave  the  case  to  arbitration.  Suppose  the  decision 
be  against  us :  would  it  not  really  be  better  for  our  interests 
in  the  future  than  a  decision  in  our  favor?  And  should 
we  not  learn  by  this  experience  that  there  is  a  great  ad- 
vantage in  hearing  both  sides  in  disputes  between  nations 
as  well  as  in  contrfversies  between  private  individuals? 

That  was  shown  in  the  case  before  referred  to,  which 
was  left  to  the  decision  of  Louis  Napoleon.  Let  us  have 
another  illustration  of  it.  If  the  result  of  the  proceedings 
shall  tend  to  check  the  universal  one-sided  rantipoling  of 
the  American  press,  on  all  questions  in  dispute  between 


ti: 


•I   ■■:;;, 


44 

this  country  nnd  others,  it  will  be  a  most  wholesome  and 
beneficent  operation. 

The  public  will  hear  in  an  authorized  form  the  British 
side  of  the  case,  established  by  due  proofs  carefully  exam- 
ined, and  will  also  hear  the  reasons  of  the  arbitrators  for 
their  decisions.  The  second  sober  thought  of  our  people, 
unclouded  by  passion,  and  our  true  love  of  justice,  will  in- 
sure a  cheerful  acquiescence  in  the  award. 


WHY  ENGLAND  DID  NOT  BREAK  THE  BLOCKADE- 
POLICY. 


-SENTIMENT  VS. 


It  should  be  borne  in  mind  that  if  England  had  broken 
the  blockade,  France  would  have  joined  her,  and  it  would 
have  been  impossible  for  the  North  to  have  continued  the 
war.  England  had  but  to  stretch  forth  her  hand,  and  the 
North  and  South  would  have  been  forever  separated,  and 
England,  by  that  act,  would  have  secured  her  dominions 
in  America — dominions  which,  amalgamated  with  the 
mother  country,  would  have  made  her  strong  forever. 
The  temptation  was  very  great,  but  it  was  resisted  and 
overcome.  Under  the  influence  of  a  great  and  noble  sen- 
timent, she  sacrificed  her  cotton  manufactures  and  much 
of  her  commerce,  and  cast  aside  her  jealousy  of  the  great, 
and  to  her  dangerous,  growing  power  of  the  United  States. 
Whether  she  acted  in  this  with  the  prudence  which  usually 
governs  nations  in  their  foreign  policy  remains  to  be  proved. 
Certain  it  is,  no  nation  ever  before  made  such  a  sacrifice 
for  a  sentiment.  The  court  and  the  liberal  party  sympa- 
thized with  the  North,  regarding  the  secession  of  the  South 
as  a  slave-owners'  rebellion.  Even  Manchester,  the  great 
suft'erer  from  the  blockade,  which  prevented  the  supply  of 
cotton,  advocated  the  cause  of  the  North. 


HINTS  TO  THE  ANTI-BRITISH  WAR  JOURNALS. 

And  now,  we  are  told,  we  ought  to  make  war  upon  Eng- 
land, upon  the  pretext  that  she  aided  the  confederacy. 
Before  embarking  in  that  war,  it  may  be  well  to  con- 


H 


holesorae  and 


SENTIMENT  VS. 


46 

Hider  what  may  bo  tlie  action  of  the  ex-Confederate  States 
and  the  Pacific  States  in  certain  contingencies.  ;i 

Even  the  noisiest  of  the  war  jonrn' '  ,  after  proving  to 
its  own  satisfaction  what  a  simple  matter  a  war  with  Eng- 
land would  be,  and  how  easy  it  would  bo  to  despoil  her  of 
her  American  possessions,  all  at  once  made  the  folio, 
ing  discover}': 

"If  England  dare  not  go  to  war  with  us  from  the  dan- 
ger she  wotdd  expose  herself  to  from  Ireland,  still  less  dare 
we  go  to  war  with  England,  knowing  how  easily  she  could 
fan  the  discontent  of  the  South  ijito  anew  rebelion,  which, 
with  the  aid  of  England,  might  defy  all  our  power  to  sub- 
due."    (.V.  Y.  Herald,  Fchrmrij  10,  1872.) 

As  to  the  position  of  England,  the  supposed  danger  from 
Ireland  appears  to  be  purely  imaginary;  for  other  r^jasons, 
she  is  evidently  most  anxious  to  avoid  war  with  the  United 
States,  and  is  ready  to  make  any  reasonable  concessions 
for  the  sake  of  peace.     Let  us  show  a  similar  spirit. 

THE  SCOPE  OF  THE  ARBITRATTON — HOW  TO  BE  DETERMINED 
— THE  CLAIMS  FOR  INDIRECT  INJURY  EXCLUDED  BY  THE 
PROTOCOL.S  AND  BY  THE  TERMS  OF  THE  TREATY. 

The  refusal  of  our  Government  to  withdraw  the  claims 
for  indirect  damages  would  not  necessarily  lead  to  the 
abandonment  of  the  arbitration  by  Great  Britain. 

Let  the  arbitrators  be  asked  by  both  parties  to  declare, 
in  the  first  instance,  what  they  consider  to  be  the  extent  of 
their  authority. 

It  should  not  be  assumed  by  the  British  government  that 
thearbitrators  will  wrongfully  usurp  jurisdiction  over  a  mat- 
ter not  submitted  to  them.  It  will  be  time  enough  for  the 
British  to  retire  from  the  case  if  they  find  that  the  true 
limits  of  the  arbitration,  as  they  understand  the  contract, 
are  to  be  overstepped.  They  have  given  timely  notice 
that  they  will  not  go  into  a  hearing  of  the  case  in  that  event. 
This  course  of  proceeding  is  of  common  occurrence  in  ar- 
bitrations of  disputes  between  private  individuals. 

If  the  arbitrators  shall  consider  that  the   terms  of  the 


46 


11 


1     ■'!'!.;,( 


11 


l!ii'i?!!:i!j 


ii'lllii! 


treaty  leave  open  for  (liscnssion  the  question  of  liability  for 
what  is  called  in  the  statement  of  the  Aniorican  Commis- 
sioners to  the  High  Joint  Commission,  en  8  Marcii  last, 
**  iNDiiiECT  injiiry  inthe  transfer  of  a  large  part  of  the  Ameri- 
can commercial  marine  to  the  British  dag,  in  the  enhanc- 
ed payments  of  insurance,  in  the  proloigation  of  the  war, 
and  in  the  addition  of  a  largo  sum  to  the  cost  of  the  war 
and  the  suppression  of  the  rebellion,"  then  (Jieat  Britain 
may  with  propriety  say,  that  there  has  been  a  misunderstand- 
ing: that  the  treaty  would  not  have  been  made  had  each 
party  understood  the  meaning  put  by  the  other  party  on 
the  language  used,  and  therefore  that  the  mutual  consent 
required  for  a  contract  is  wanting. 

It  follows  that  the  arbitration  in  that  case  is  abandoned. 

If,  on  the  other  hand,  the  arbitrators  shall  consider  that 
the  claims  in  question  are  not  within  the  submission,  then, 
if  (hat  decision  be  satisfactory  to  the  United  States,  the  arbitra- 
tion may  proceed.  But  if  the  United  States  shall  be  dis- 
satisfied with  that  construction  of  the  contract  to  submit 
the  matters  in  dispute  to  arbitration,  then  the  arbitration 
must  be  abando:  ^d. 

This  mode  of  dealing  with  the  preliminary  question  is 
perfectly  compatible  with  the  dignity  of  both  countries. 
The  question  as  to  the  real  scope  of  the  arbitration  de- 
pends partly  upon  what  was  said  upon  the  negotiation  for 
the  reference,  but  mainly  upon  the  terms  of  the  treatj'. 

At  the  conference  held  on  the  8th  of  March,  the  Ameri- 
can commissioners  stated  that  the  cruisers  ''which  had 
been  fitted  out  or  armed  or  equipped,  or  which  had  received 
augmentation  of  force  in  Great  Britatn  or  in  her  colonies," 
had  caused  "DIRECT  bosses  in  the  capture  and  destruction  of 
a  large  number  of  vessels,  with  their  cargoes,  and  in  the 
heavy  national  expenditure  in  the  pursuit  of  the  cruisers, 
and  INDIRECT  injury  in  the  transfer  of  a  large  part  of  the 
American  commercial  marine  to  the  British  flag,"  (&c.,  as 
above  quoted ;)  that  the  claims  for  the  loss  and  destruction 
of  private  property  amounted  to  about  fourteen  millions; 


47 

'*  that  the  cost  which  the  Government  had  been  put  to  in 
the  pursuit  of  the  emitters  couKl  easily  he  ascertained  by  cer- 
tificates of  Government  accounting  officers;  that  in  the 
hope  of  AN  amicnble  settlcmenf.  no  estimate  was  made  of  the 
INDIRECT  losses,  without  prejudice,  however,  to  the  right  to 
Indemnification  on  tlieir  account  in  the  event  of  no  such  settle- 
ment being  made." 

The  American  commissioners  at  the  same  time  "  pro- 
posed that  tiie  Joint  High  Commission  should  agree  upon 
a  sum  which  should  be  paid  by  Great  Britain  to  the  Uni- 
ted States  in  satisfaction  of  all  the  claims  and  the  interest 
thereon." 

The  British  commissioners  replied,  denying  all  liability, 
but  proposing  to  leave  the  question  to  arbitration.  The 
American  commissioners  then  stated  that  they  "could 
not  consent  to  submit  the  question  of  the  liability  of  Her 
Majesty's  Government  to  arbitration  unless  the  principles 
which  should  govern  the  arbitrator,  in  the  consideration  of 
the  facts,  could  b*^  first  agreed  upon."  (See  Protocol  3 
May,  reciting  what  had  been  done.) 

That  matter  being  aftervv^.rds  arranged,  the  arbitration 
was  agreed  upon. 

It  is  conceded  b}'  the  British  government  that  the  claims 
for  the  expenses  of  the  pursuit  of  the  cruisers  are  within 
the  submission,  because  they  were  expressly  mentiontd  in  the 
negotiation  for  the  reference,  and  classed  amongst  the  ^Uiircct 
losses."  (Whether  such  classification  is  correct  or  not  is 
immaterial.) 

But  it  ia  contended  that  the  claims  for  the  "indirect  in- 
jury" are  impliedly  abandoned  by  the  intimation  that  no 
estimate  of  it  had  been  made,  the  estimate  being  confined 
to  the  direct  losses,  in  the  hope  that  there  would  be  an  ami- 
cable settlement  of  the  matter.  That  is  to  say,  upon  an  amica- 
ble settlement  the  claim  was  to  be  about  fourteen  millions, 
with  someting  added  for  the  cost  of  chasing  the  cruisers; 
if  no  amicable  settlement  was  arrived  at,  the  claims  for 
thousands  of  millions  were  to  be  held  up  in  terrorem.  Here 
it  at  once  appears  to  be  highly  improbable  that  the  claims 


48 


.III' 


thus  to  i)o  alinndonod  woi'o  to  bo  retained,  if  a  friendly 
mode  of  settling  [ho.  iVilYwnUy  hIiouM  bo  iigroed  upon. 

It  irt  ju'gui'd  on  tbo  IJriii.sh  side  that,  altb(Miu;li  a  pnrtiou- 
hvr  proposal,  tbat,  if  accoptod,  would  luivo  been  an  aniical)Ie 
settlement,  was  rejected,  yet  tliat  such  proposal  was  fol- 
lowed by  a  counter  projtosal  of  an  arbitration,  wliich  was 
agreed  to,  and  tluit  this  arbitration  constituted  an  "anilca- 
blo  settlemejit,"  in  another  form,  it  is  true,  than  that  first 
proposed,  but  fully  within  tlio  moaning  of  that  expression, 
as  used  by  tlio  American  commissioners.  In  support  of 
that  argument,  they  refer  to  the  preamble  of  the  treaty, 
which  reads  thaiT:  "The  United  States  of  America  and 
Ilor  Britannic  Majesty,  being  desirous  to  provide  for  an 
amicable  settlement  of  all  causes  in  dill'orenco  between  tlie 
two  countries,"  Ac. 

This,  it  is  eaid,  shows  that  what  was  agreed  to  was  con- 
sidered at  the  time  to  be  an  "amical)le  settlement"  of  the 
ilisput'j.  In  reply  to  this,  it  is  said  that  the  arbitration  is 
not  in  itself  an  amicable  settlement.  Suppose  that  point 
to  1)0  well  taken,  lot  us  carry  the  inquiry  a  stage  further. 
Suppose  an  award  to  be  nnide  by  the  arbitrators,  and  that 
award  to  be  submitted  to,  performed,  and  abided  i)y:  will 
there  not  then  be  an  amienlde  settlement?  Of  course  that 
will  be  so.  And,  as  it  was  held  forth  that  an  amical)le  set- 
tlement would  shut  off  the  claims  for  the  indirect  injury, 
of  wliich  no  estimate  wliatevor  was  made,  they  cannot  with 
propriety  bo  presented  now. 

Probably  no  one  supposes  that  the  English  commis- 
sionirs  considered  that  tliese  vague,  unostimated  claims 
were  a  fit  subject  for  arbitration.  It  could  not  possibly 
have  l)cen  intended  to  give  such  a  wide  range  to  the  arbi- 
trators. 

Having  thus  considered  what  transpired  on  the  negotiation 
for  the  reference,  let  us  next  see  whether  the  terms  of  the  treaty 
are  compatible  with  the  presentation  of  the  claims  for  the 
"indirect  injury." 

By  the  treaty,  after  reciting  the  differences  between  the 
two  governments,  "growing  out  of  the  acts  committed  by 


>  I 


49 

the  flovoral  vchhoIs,"  it  is  ncrrocrl  tliat  the  Raid  claims  shall 
bo  rcforrod  to  arbitration,  and  article  7  provides,  that  "the 
Huid  tribunal  shall  first  dcterniino  as  lo  mcfi  iwssfl.  .scpnratdi/,'^ 
wljcther  (iroat  Britain  has  failed  to  fulfill  her  duty.  In  case 
tho  tribunal  find  that  (Jroat  Hritain  basso  failed,  it  may 
award  a  sum  in  gross  for  all  the  claims.  Article  10  pro- 
vides that  in  case  of  the  omission  of  the  tribunal  to  follow 
up  its  decision  by  such  award,  tlien  a  board  of  assessors 
"shall  be  appointed,  to  asctertain  and  determine  what 
claims  are  valid  and  what  amount  or  amounts  shall  be 
paid  by  Great  Britain  to  tho  United  States  on  account  of 
tho  liabiWy  arlsbifi  from  t'xch  fdihire^  ah  to  each  vessel,  ac- 
cording to  tho  extent  of  such  liability,  as  decided  by  the 
arbitrators." 

The  moaning  of  articles  7  and  10,  taken  together,  is  that,  if 
tlie  arbitrators  find  thoalleged  default  to  have  been  commit- 
ted, thoy  may  award  a  sum  in  gross,  on  account  of  the  liabil- 
ity, for  all  the  vessels;  and,  if  they  fail  to  do  so,  the  assessors 
are  to  ascertain  tho  liabilitv  as  to  each  vessel.  P^videntlv  it 
was  considered  that  tho  assessors  should  not  be  intrusted 
with  tho  largo  discretionary  power  vested  in  the  arbitrators 
to  lump  all  the  damages  together.  But  the  damages  to  be  as- 
certained are  the  same  in  both  cases — the  arbitrators  may  lump 
them:  the  assessors  must  separate  thom — that  is  all  the  dif- 
ference. 

And  now  the  question  arises  whether,  in  ascertaining  the 
amount  to  be  paid  on  account  of  tho  failure  as  to  any  partic- 
ular vessel,  the  indirect  injury  by  "the  transfer  of  a  large 
part  of  the  American  commercial  marine  to  the  British 
flag,"  &c.,  &c.,  could  be  apportioned  and  computed  by  the 
asssessors,  and  put  down  to  the  account  of  that  vessel. 
Clearly  not;  and  therefore,  b}^  the  terms  of  the  treaty 
itself,  the  claims  in  question  are  inadmissible. 


It  may  he  said  that  the  British  commissioners  should 
have  had  the  treaty  made  plainer  and  clearer  than  it  is. 
On  the  whole  it  appears,  however,  to  be  as  satisfactory  a 
bargain  as  could  reasonably  be  expected. 
4 


50 


iil:«' 


'iiii 

;  I" 
iiliii 
111). 


It  was  deemed  necessary  to  pacify  the  monster  which 
had  been  generated  by  popular  ignorance  and  fury,  and  it 
was  probably  considered  by  the  British  commissioners 
that  even  a  bargain  rather  one-sided  was  better  than 
nothing;  and  so  it  was,  and  much  credit  is  due  to  them 
for  accomplishing  as  much  as  they  did. 

It  was  considered  by  many  intelligent  people  that,  if 
England  could,  by  the  payment  of  four  or  five  millions  of 
pounds  sterling,  allay  the  excitement  on  this  subject  in 
America,  and  at  the  same  time  get  a  treaty  restraining  its 
citizens  from  filibustering,  it  might  not  be  a  bad  bargain. 
Such  treaties  are,  however,  as  we  have  already  shown,  of 
doubtful  utility. 

Taking  a  careful  survey  of  the  whole  matter,  there  is 
nothing  to  show  that  it  was  bad  policy  on  the  part  of  the 
English  diplomatists  to  submit  the  question  of  liability  with 
the  retroactive  new  rules  of  law  to  govern  the  arbitrators, 
and  even  to  choose  arbitrators  who  might  adopt  the  conti- 
nental ideas  of  international  law,  in  preference  to  the  doc- 
trines which  England  and  the  United  States  have  adhered 
to,  affirming  the  right  of  neutrals  to  supply  arms,  &c.,  to 
belligerents. 

There  was  an  imperative  necessity  for  getting  rid  of  the 
contention.  The  popular  clamor  might,  perhaps,  have  been 
allayed  in  another  way,  if  it  had  been  thought  of  and  if  the 
United  States  Government  had  been  desirous  of  getting 
rid  of  the  dispute.  Thus,  if  it  had  been  pointed  out  that 
the  restoration  of  the  seceded  States — the  ex-belligerent — 
to  the  Union  had  entirely  changed  the  status  of  the  con- 
ti'oversy  and  obliterated  the  claims,  the  public  would  have 
accepted  that  solution  of  the  difficulty. 


THE  DOCTRINES  OF  THE  "CASE"  SHOULD  BE  REPUDIATED  BY 
OONaRESS — THE  CONSTITUTIONALITY  OF  THE  TREATY — HOW 
TO  GET  RID  OF  IT. 

The  rules  adopted  by  the  treaty,  and  made  binding  on 
this  country,  (if  the  treaty  be  valid,)  are,  as  we  have  already 
shown,  highly  objectionable.     It  is  impossible  for  us  to 


v» 


Lonster  which 
id  furv,  and  it 
lommissiouers 
5  better  than 
due  to  them 

leople  that,  if 
ve  millions  of 
his  subject  in 
restraining  its 
a  bad  bargain, 
sady  shown,  of 

latter,  there  is 
he  part  of  the 
if  liability  with 
he  arbitrators, 
iopt  the  coiiti- 
ice  to  the  doe- 
1  have  adhered 
^  arms,  &c.,  to 

:inff  rid  of  the 
,ps,  have  been 
X  of  and  if  the 
lus  of  getting 
inted  out  that 
•belligerent — 
\s  of  the  con- 
ic would  have 


SPUDIATBD  BY 
ITREATY — HOW 

binding  on 
I  have  already 
lie  for  us  to 


61 

abido  by  them,  especially  if  they  are  to  be  construed  as  our 
Secretary  of  State  construes  them.  '^ 

Congress  should  interpose,  and,  at  the  very  least,  should 
adopt  resolutions  to  the  eft'ect,  that  the  "case,"  as  pre- 
sented, is  not  approved  of.  That  course  would  be  pursued 
by  the  British  Parliament,  in  a  case  where  the  action  of 
the  government  should  be  contrary  to  public  opinion;  and 
although  there  is  an  im^.ortant  difference  between  the 
British  constitution  and  ours,  seeing  that  our  Government 
may  persist  in  its  course  in  defiance  of  Congress,  whereas 
the  English  government  must  defer  to  the  House  of  Com- 
mons, yet  that  forms  no  sufficient  reason  why  the  executive 
should  be  allowed  to  act  as  it  pleases,  without  supervision 
or  rebuke. 

It  is  conceived  that  Congress  might  vdth  great  propriety 
resolve  that  the  claim  for  indirect  injury,  and  also  the 
doctrine  of  the  "  case,"  as  to  due  diligence,  should  be  aban- 
doned. 

The  obnoxiousness  of  the  new  rules  might  be  very  much 
mitigated  by  our  putting  a  reasonable  construction  upon 
the  words  '■''due  diligence,"  but  the  objection  would  still  re- 
main, that  we  ought  not  to  be  called  upon  to  use  any  dili- 
gence at  all  to  prevent  our  people  from  building  and  selling 
ships  available  for  war  purposes,  because,  as  shown  by  the 
House  Committee's  report  on  neutral  relations,  before  re- 
ferred to,  the  effect  of  such  a  restriction  is  to  deprive  our 
ship-builders  of  their  rights,  and  "to  perpetuate  the  subju- 
gation of  States  without  naval  force  to  the  rule  of  dom- 
inant maritime  nations." 

Although  these  rules  refer  only  to  ships  and  ports,  the 
principle  affirmed  by  them  imposes  upon  us  the  exercise 
of  diligence  to  p''event  the  departure  by  land  of  persons 
sympathizing  wHh  a  people  fighting  for  their  liberty,  to 
which  end  we  must  repress  all  public  meetings  and  com- 
binations of  such  sympathizers. 

The  treaty-making  power  has  undertaken  to  lay  down 
the  law  of  nations  in   exact   opposition   to  the  unaui- 


■T= 


I 


.11       I 


PI. 

ill 

Him, 
1^ 


111' 


I     I 


'«^ 


62 

mous  opinion  of  the  House  of  Representatives,  as  shown 
by  Banks's  bill  on  neutral  relations.  The  direct  represent- 
atives of  the  people  are  thus  regarded  as  of  no  consequence, 
which  reminds  us  of  Queen  Elizabeth  telling  the  House  of 
Commons  not  to  trouble  themselves  with  affairs  of  State, 
but  to  attend  fco  their  own  business. 

Whilst  adverting  to  that  bill,  to  amend  the  neutrality  laws, 
the  question  maybe  asked,  whyitwas  framed  so  as  to  make  it 
unlawful  to  sell  an  armed  ship,  whilst  declaring  it  to  be  lawful 
to  sell  a  ship  adapted  for  war  purposes,  and  also  to  sell  the 
armament  separately  ?  It  will  be  perceived  that  although 
by  that  bill  it  is  unlawful  to  furnish,  fit  out,  and  arm  a  ship, 
(all  these  three  things  must  be  combined  to  constitute  the 
<;)ffence,)  it  is  perfectly  lawful  to  build  and  sell  a  ship  adapted 
for  war  purposes. 

That  is  directly  antagonistic  to  the  last  portion  of  the  first 
rule,  which  runs  thus:  "A  neutral  government  is  bound, 
first,  to  use  due  diligence  to  prevent  the  fitting  out,  arming, 
OR  equipping,  within  its  jurisdiction,  of  any  vessel  which  it 
has  reasonable  ground  to  believe  is  intended  to  cruise  .or 
to  carry  on  war  against  a  power  with  which  it  is  at  peace, 
and  also  to  use  like  diligence  to  prevent  the  departure  from 
its  jurisdiction  of  any  vessel  intended  to  cndse  or  carry  on  war 
as  above,  such  vessel  having  been  specially  adapted  in  whole 
or  in  part,  within  such  jurisdiction,  to  loarlike  use." 

The  question  as  to  the  constitutional  power  of  the  Pres- 
ident and  Senate  to  make  laws  of  the  highest  magnitude 
and  importance,  without  the  consent  of  the  House  of  Rep- 
resentatives, deserves  grave  consideration. 

Our  claims  are  clearly  unjust.  Why  should  we  adhere  to 
them?  It  is  open  to  us  now  to  declare  that,  even  assuming 
them  to  have  been  rightful  when  first  presented,  they  have 
become  extinguished  by  the  restoration  of  the  Union,  where- 
fore, we  ask,  that  the  treaty  shall  be  abrogated.  England, 
no  doubt,  would  consent  to  that,  upon  a  withdrawal  of  the 
claims. 


63 

That  is  the  best  way  to  get  rid  of  the  obligation  sought 
to  be  imposed  by  the  treaty/ article  6  providing  that  the 
two  countries  shall  observe  the  new  rules  as  between  them- 
selves in  future,  and  invite  other  powers  to  accede  to  them. 
Hereafter,  when  it  is  desired  to  make  new  laws,  the  action 
of  the  House  of  Representatives  should  be  invoked. 

It  may  be  found  necessary  to  get  rid  of  these  new  rules, 
even  if  we  have  to  go  the  length  of  declaring  that  the  Pres- 
ident and  Senate  had  no  power  to  impose  those  shackles 
upon  the  nation. 


w 


K 


r    ;i!i 


\  » 


1/ 


/,« 


*t. 


ir 


,ir-M^'i 


1# 


ik'irs='i'-J  I 


§: 


i'.'A'/ 


<A«I 


LlTtRARY  ABTIOLEB  IN  FWWE  AND  POETRY  Of  OlHQUifAllTY 
lNDI$TfiREayWi£LORA0ElTWFAO¥i;^     :    . 


«%»«5?ri»»T!.* 


tlii  BubdHhM  on  Sfttard 
I,  u«  moot  wicHed  cit; 


Wnahui 


Tiil)>ii!KiiiPh,'»t«rUnK,  and  seaL 
HQiipaalAT  aoUa.  m  w«li ««  amusli 
tiv«1«iid«r.  .1^  :Oont(ibu(or»  nni 
•ditoi'Itiohtofbi  A  ipuinaUst  whtf 

jrith'li*  pi«8«(it-a<t)ntni)'traUoa>fi»^  „ 
Tbal^MltfttMon  CitiHwI.  which 


M^^H^  iL  W^l«8.  Amaca  Wnllii 
FimiS)  UnwhttoR,  aqd  otherx. '  ''^ 
,  Ob  Ipwday*.  aw  •  •oca^'od  itlon 
patemwhd^*  brien  «»  sharp  and 
.    On<«  of  tlift  apfGi«ai-|>«|i«ii»  i«  th«, 
*ot> ctty.   Itflowv flye» with tbe t— 
«n  thfl  foclnl  an  wicH  i^  Jmltlfa^i 

Tb^CaMW  haf  a  Hi*«^«tiity 
In^BattiinArQ,  whertf  tho  H»t  la 

*  br»fl|«tit«of  >Slt<>ri,*7^  wl 

The  Oapltln,  fi^UhM  at  W»»hf 
metttion/  «♦»«■»»  aoHy  whor* 
hMb«ieni{Ki»|N^^nt.  It  haw  her*! 
any  c«pi(iil«iWTirth«  natnoa  of  Dor" 
Aitniversary  withAMTlnR  aubvcr 
«n  jid»erti8lTi« Jii&feiga  really  r 
Mt  George  AW*  JTownsend  ro\ 
ikttQtAAWKt,  but  DoMv  Piatt  i« j 
atnrdy'iiiaependeifea  and  wit.    T 
fttnfrtittMeoai^preaa  with 
and  bamoro^a  etH^ttt.—Spirltt 


the  part  asaigptd  td'tbd 
ttB  be,  luti;Meii   '-" — '   ■ 
itylhoQMirid     * 
id  th«i  wttole 
ixAdrlei-.Gll 
lea  a  reMlar 
RdMTi   Pemme  I 

.thouldtaketheOal 
l.«4it«d  hypolonel 


«lt.ftin  WM  graial  aatiretpairl  . . 
r<nt«trebnlttiii  Tlfe.    TM  nliaat  editor  haa 
at'  Waahiagtbuk  and  ia  tMnVwiMlly)  lead 


piticreasing  aa  faat Wli  u4Sun  at  M  aar*"^ 
angle  year  by  tb^  fetUtt*  or  on*  anatt.  al ' 
rUB  had  the  good  A>rtlin»tO  atRMltibd  It! 


...J.  haaimii  a  euceeelrthat  ta wattkfjatfi^UiitM 
Before  indepeit^oni  JoorJiall  <M  wtmmmmm,  it 
toyear independient With  ahUt^.  SttM^imhoirt 
itit  and  Heorira  Al««ed  Tomarad^iPiSriMt*  flret 
ht^liat  that  exteiHla  throqi^ont  tba  ii/*H^,  and 
'pkittfor  ao  aleecw  a  oityaKobr  MtumMttai^tiyL 
wffh  the  rapttSf.  after  It  ifiM«m.|^«h4llM&' 
a  "nie  marked  ibatoMarf  %4/jMtw'«f«  1^ 
artlola  aeeimi  luMhattPMi. alBfaWityWpo . 


•of  good! 


lings  in  tb«*ay^of.f(i«i9«tMM|i 


i«na 


t"     '^ 


sa« 


»! 


Si'^^lffv  ^  »     , 


-^v<  1^ 


^^H«a''i'*ii 


^  ^'^kiiM.'Mk  i 


i?hj 


mlm  I  Wi^'i 


.■I ' 


.liU 


B^^^ttfta^. 


ini. 


KaHMiit  editor  ha* 

uteMHitidbiiniitfr, 
;hoat 


NWN 


mmimm 


